Summary: Miss X complains the Council failed to deliver her son H’s Education, Health and Care Plan in line with statutory timescales, causing frustration and uncertainty. We find fault with the Council for delay, and have agreed a symbolic payment for the distress and frustration caused to Miss X.

The Ombudsman’s role and powers

3. 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)
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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)

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How I considered this complaint

8. I spoke with Miss X and considered the information she provided.
9. I made enquiries with the Council and considered the information it provided.
10. I considered relevant law and guidance, as set out below and our guidance on remedies, published on our website.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Education, Health and Care Needs Assessment

12. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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. 
13. If the council goes on to issue an EHC Plan, 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 (unless certain specific circumstances apply).  
14. As part of the assessment councils must gather advice from relevant professionals.

Education, Health and Care Plan

15. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.
16. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.

Alternative provision

17. Councils have a duty to arrange the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. (Section 19 of the Education Act 1996)
18. 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)
19. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated.
20. There is no legal deadline to start provision; it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. Some forms of provision (such as one-to-one), which is intensive, need not be full-time. Provision must be similar to what is offered in school. (Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013)

Service failure

21. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

Council’s complaints procedure

22. The Council has a two stage complaints procedure:
• Stage one – a response from a manager within 20 working days.
• Stage two – a response from the Corporate Complaints manager within 20 working days.

What happened

23. Miss X has a son H who is at secondary school. Miss X says he stopped attending school in March 2023 due to the school being unable to meet his needs.
24. In July 2023 H’s school contacted the Council to request an Education, Health and Care Needs Assessment (EHCNA). The Council agreed to the assessment in August and wrote to Miss X saying it would respond with an agreement or otherwise to the EHC Plan by 7 November.
25. The school made a referral to the Council for home tuition for H under S19 in October and H started this on 10 November.
26. The Council wrote to Miss X on 9 November saying it agreed to issue an EHC Plan but it was waiting on further advice.
27. H started alternative provision on 14 November. He started with two hours for two days a week and increased to two hours five days a week.
28. Miss X made a complaint to the Council at the end of March 2024 as she still had not received the EHC Plan.
29. The Council received the report from the Educational Psychologist (EP) on 24 April 2024.
30. The Council responded to the stage one complaint in early May, upholding the complaint saying it had not issued the EHC Plan within the statutory timeframe. It explained the delay with the EP report and said it would issue the draft EHC Plan by 17 May.
31. The Council issued the draft EHC Plan on 21 May.
32. Miss X made a stage two complaint on 14 May saying H had been out of school for a year and she had to wait six weeks for a stage one response.
33. The Council responded on 19 June saying the complaint was upheld. It said it has made significant investment to recruit more EP’s and also recruited additional staff to help the EHC Plan team. The Council received a referral for home tuition from the school on 1 October and H’s tuition started on 10 November. H remains on the roll at school and while assessment is taking place the Council do not agree that suitable education provision has not been available.
34. Miss X brought her complaint to the Ombudsman as she did not feel the Council adequately addressed her concerns.
35. In response to my enquiries the Council said the EHC Plan would be issued by 9 November 2024. It was not issued until 6 February 2025. Miss X is appealing the EHC Plan as it still names the mainstream school in Section I which she says is not suitable for H.
36. In response to my enquiries the Council has confirmed the action it is taking to reduce delays caused by the shortage of EP’s. It says it is working to increase the capacity across its EP service. It has allocated financial resources to expand the Educational Psychology team to ensure it can not only keep up with demand but also offer early intervention and preventative work. The Council says it has recruited two trainee EP’s and widened its associate pool to work on the backlog of assessments.
37. The Council says it has reviewed and refined the supervision and support for all its EHCP coordinators across the service to ensure they can fulfil their duties.
38. H is still on the school roll and is accessing 1:1 tuition under S19 for two hours, five days a week.

Analysis

EHCNA

39. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales (see paragraphs 12 and 13).
40. The Council should give the assessment decision within six weeks, here it took 11 weeks. The draft plan should have been issued at the end of October 2023, and it was issued in May 2024, a delay of seven months. The final EHC Plan should have been issued by the end of November 2023, and it was issued in February 2025. This is a delay of 15 months.
41. Councils must seek EP advice as part of an EHC assessment. This should be received within six weeks of the council requesting it. The Council is responsible for the commissioning and delivery of the EP advice and information. The delay in receiving the advice is due to a nationwide shortage of EP’s. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons why the EP advice took longer than it should have, the delay was nonetheless fault.
42. The Council received the EP report in April 2023, but it still took another ten months for the Council to send the final EHC Plan. The delay is fault causing Miss X and H frustration, distress and uncertainty. It also delayed Miss X’s right of appeal.

S19 Alternative Provision

43. The Council knew H was out of school in October 2023. It started 1:1 tuition with him in November. I do not find fault with the Council for delay as it worked to find a tutor as soon as it was aware.
44. Although this is not full time education, it is in H’s best interests and also provided on a 1:1 basis so it is appropriate education for him (see paragraph 18). I do not find fault with the Council for providing a part time timetable for H.

Complaint

45. The Council’s complaint procedure says the stage one complaint will be responded to within 20 working days (see paragraph 21). The Council responded after six weeks. This is fault by the Council causing frustration to Miss X.

Remedies

46. I am aware we have made service improvements to this Council on a similar case recently (24001504). It is clear the Council is experiencing issues which it is addressing. I am satisfied the service improvements agreed on the other complaint also address the issues from this complaint, and the Ombudsman will continue to follow up with the Council on any previously agreed service improvements and we will monitor the impact of these changes through our complaints.

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Recommended Action

47. Within one month of the final decision the Council should:
• apologise to Miss X for the delay with the complaint response and delay in the EHC Plan process, causing distress, frustration, and uncertainty. We have published guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• pay Miss X £1500 to acknowledge the distress, frustration and uncertainty caused to her and H by its failure to issue the final EHC Plan in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan in November 2023 until the date it was issued in February 2025.
• pay Miss X £200 for the distress and frustration caused because of the faults above. This is a symbolic amount based on our Guidance on Remedies.
• The total payment to Miss X is £1700.
48. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

I find fault by the Council for delay in issuing H’s EHC Plan causing frustration, distress and uncertainty to Miss X. I have recommended a symbolic payment for the injustice to Miss X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman