Summary: Mrs X complained the Council failed to complete an Education, Health and Care needs assessment for Y within the statutory time limits, and failed to ensure she received suitable education while she was out of school. Mrs X said this caused her real stress and meant she incurred additional expenses. We find the Council at fault. The Council has agreed to apologise, make a payment to recognise the injustice and act to prevent recurrence.

The complaint

1. Mrs X complains the Council failed to complete an Education, Health and Care (EHC) needs assessment for her daughter, Y within the statutory time limits and failed to provide alternative education for the time she spent out of school. As a consequence, Mrs X says she has been caused real stress and spent a lot of time chasing the Council. Mrs X says she has had to spend her own money on ensuring Y could access education and she has not received the free school meals she was entitled to.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The SEND tribunal is a tribunal that considers special educational needs. We cannot investigate a complaint when someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. The courts have established that if someone has lodged an appeal to a SEND tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the result of an EHC needs assessment, we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. I have considered Mrs X’s complaint from the request for an EHC needs assessment in June 2023 up until the point the Council issued a final EHC Plan in September 2024.
9. We cannot investigate complaints where someone has the right to appeal to a tribunal. There is a right to appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.
10. Any mention below of events that took place outside the periods I have investigated are for reference only.

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How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

EHC Needs Assessment

13. A child or young person with special educational needs (SEN) may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
14. On receiving a request for an EHC needs assessment, a council must decide whether an assessment is necessary. As part of an EHC needs assessment, a council must seek advice from the parent, head teacher of the school, and from any other professionals, including an Educational Psychologist (EP).
15. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (the Code) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• If a Council decides to assess a child’s EHC needs, they must gather information from relevant professionals, who must respond within six weeks;
• If the Council decides not to issue an EHC Plan, it must explain this within 16 weeks from the date of the request.
• If it decides to issue an EHC Plan, the Council must then send a draft plan to the child’s parents, giving them 15 days to comment; and
• The whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks.

Alternative provision

16. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
17. The "otherwise" category provides for a wide range of scenarios where the Council may have a legal duty under section 19. It would include, for example, when a child was refusing to attend school due to anxiety or phobia. (Statutory guidance ‘Alternative Provision’ January 2013)
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
19. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
20. When reintegration into school is anticipated, councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.
21. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022. We made recommendations that Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
22. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.

What happened

23. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
24. Y was enrolled at School A, a mainstream school.
25. In April 2023, Mrs X contacted the Council to let it know Y was not currently accessing any education. At this point, Mrs X began educating Y at home and taking her to various activities to help her stay active and socialising. From then, Y’s timetable was recorded as part-time at School A, but Mrs X has said she received no education there.
26. School A contacted the Council on 7 June and asked it to complete an EHC needs assessment for Y.
27. On 3 July the Council responded, declining to assess Y’s EHC needs. Mrs X appealed this decision to the SEND Tribunal, but before the appeal was heard, Y was diagnosed with autism and the Council agreed to complete an EHC needs assessment for her.
28. This was assigned to a case worker on 5 December, and they requested the relevant advice to complete the EHC needs assessment.
29. Mrs X complained to the Council in March 2024 as it still had not provided the result of the EHC Needs Assessment.
30. By 26 March, the Council had missed the 16-week deadline to let Mrs X know if it had decided not to issue an EHC Plan for Y.
31. The Council responded to Mrs X’s complaint and apologised for the delay in completing Y’s EHC needs assessment. It explained there had been a significant increase in assessment requests, which created a delay but said Y’s assessment was now due to be allocated to an EP within the next four weeks. The Council also explained it was currently using associate EPs and had increased the capacity of its SEND department to prevent delays going forward. The Council said it was sorry Y was not receiving full time education, but pointed out an EHC Plan would not guarantee she was placed in a specialist school.
32. Mrs X asked the Council to review her complaint as it did not provide any solution for Y.
33. By 23 April, the Council still had not let Mrs X know if it had decided to issue an EHC Plan for Y and missed the 20-week deadline to do so.
34. The Council responded to Mrs X’s complaint to explain it could not fast-track Y’s case or achieve Mrs X’s requested outcome of moving her to a new school setting. It explained Y’s assessment had been allocated to an EP and it could not take further action until it was ready to progress the EHC needs assessment.
35. The Council received the EP report for Y in July 2024. It wrote to Mrs X on 15 July agreeing to issue an EHC Plan and asking for her preference of educational settings. This was around 16 weeks after the deadline to do so.
36. The Council issued a draft EHC Plan on 14 August and Mrs X provided her comments three days later.
37. On 24 September, the Council issued a final EHC Plan for Y, naming School A as her educational setting. This was around 22 weeks after the deadline to do so and Mrs X has now appealed that EHC Plan.
38. In response to enquiries on this complaint the Council has said it was not involved in monitoring Y’s part-time timetable until January 2024 but has said there is no evidence it reviewed the part-time timetable since that time either. The Council has said Y was on roll at School A and fulltime education was funded and available for her there. The Council also said School A was responsible for reviewing the reduced timetable and holding regular reviews, looking to increase this.

Analysis

EHC Needs Assessment

39. The Council initially received a request to assess Y’s EHC needs on 7 June 2023. The Council promptly responded to decline this request on 3 July 2023, which is within the statutory time limits, and I do not find it at fault for delay here. Mrs X was then free to appeal the Council’s decision to the tribunal.
40. However, before the tribunal could hear Mrs X’s appeal, Y was diagnosed with autism and the Council agreed to consider her EHC needs.
41. The Council began the process of assessing Y’s EHC needs on 5 December 2023. If the Council completed this in line with statutory time limits, Y’s EHC Plan would have been finalised by 23 April 2024. However, the Council did not finalise Y’s EHC Plan until September 2024, around five months later. This is fault.
42. The delays caused uncertainty and distress for Y and Mrs X and delayed Mrs X’s right to appeal to the tribunal. The delays also created uncertainty around whether Y was missing out on special educational provision she would have been entitled to between April 2024 and September 2024. This is injustice.
43. The Council has explained the reason for the delay was a shortage of available EPs and has set out how it is addressing this by increasing its SEND team capacity and using associate EPs. I find this is suitable to address any ongoing issues, however it does not address the personal injustice to Y and Mrs X.
44. Throughout the delay, there were frequent periods of inactivity meaning Mrs X had to chase the Council for updates. Failure to keep Mrs X updated throughout this process is poor practice and amounts to fault which caused further uncertainty to her.

Alternative provision

45. Mrs X let the Council know Y was not attending School A in April 2023. At this point, the Council needed to consider its duty to make arrangements for the provision of suitable education or consider enforcing attendance at School A. The Council has not provided any evidence to show how it did this, which is fault and has created uncertainty around whether Y was receiving a suitable education from that time, which is injustice.
46. The Council has said School A was responsible for agreeing a part-time timetable with Mrs X and keeping this under review, however the guidance is clear this is the Council’s responsibility, and the Council must retain oversight. The Council has not been able to provide any evidence it assessed the suitability of the part-time timetable for Y or kept this under review and this is fault. Mrs X has said she was not happy with the part-time timetable and she only agreed to this in order to avoid fines for non-attendance. Mrs X says Y did not actually receive any education from School A in that time and she incurred costs of providing additional education to Y which is injustice.
47. Throughout the timeline I have looked at, the Council had multiple opportunities to consider the suitability of the part-time education Y was receiving, including when Mrs X complained to it in March 2024. That it did not do so is fault and meant the injustice continued across four school terms in the period I have looked at.
48. We cannot know with certainty what education would have been suitable for Y during this time, however, Y and her family have been caused a period of distress and uncertainty regarding whether the Council could have done more to improve her educational outcomes during this period had it acted without these faults.
49. Mrs X has said Y missed out on free school meals during the time she was out of school, and she incurred these costs as a result. However, as I could not say Y should not have been attending School A, I could not say she was unable to access the meals available to her there.

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Action

50. To address the injustice identified above, the Council should carry out the following actions within one month:
• Provide Mrs X with a written apology for the injustice caused by the failure to complete Y’s EHC needs assessment within the statutory time limits, the failure to consider and monitor the suitability of Y’s part-time timetable, and for the failure to keep her updated. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
• Pay Mrs X £500 to acknowledge the distress, frustration and uncertainty caused by the Council’s failure to issue Y’s EHC Plan in line with the statutory timescales, and for the failure to keep her updated;
• Pay Mrs X £3,600 to recognise the injustice across four school terms of failing to assess the suitability of the part-time timetable Y was receiving. This figure also takes into account the costs Mrs X incurred during that time; and
• Remind staff dealing with these cases that where they are aware a child is not attending school full-time, it is the Council’s duty to ensure they receive a suitable education and keep cases of part-time education under review.
51. The Council should provide us with evidence it has complied with the above actions.

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Decision

52. I find the Council at fault for failing to complete Y’s EHC needs assessment in line with statutory time limits and for failing to satisfy itself she was receiving a suitable education while she was out of school, causing injustice. The Council has agreed actions to remedy the injustice and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman