Summary: We upheld Ms X’s complaint about delay in issuing Y’s Education Health and Care Plan and delay in arranging alternative educational provision. This caused avoidable frustration, uncertainty, distress and a loss of provision. The Council will issue an apology, and make payments for missed provision, distress/uncertainty and reimburse the cost of an Educational Psychologist's report.

The complaint

1. Ms X complained the Council:
1. Refused to carry out an Education Health and Care (EHC) needs assessment for her child Y
2. Delayed completing the EHC plan process and in arranging alternative provision for Y
3. Did not name a setting on the final EHC plan
4. Used an Educational Psychology (EP) report from a council EP which she has never seen
2. Ms X said this caused avoidable distress and Y a loss of educational provision due to him not attending school and a financial loss because she paid for a private EP report.

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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. 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)
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. We cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
9. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)

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What I have and have not investigated

10. I have investigated complaints (b) and (d). I did not investigate complaint (a) because Ms X appealed the decision to the SEND Tribunal. Complaint (c) had a right of appeal to the SEND Tribunal which was reasonable for Ms X to have used.

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How I considered this complaint

11. I considered the complaint to us, the Council’s complaint responses and documents described in this statement.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

13. Our Principles of Good Administrative Practice set out our expectations for councils. They say councils should ensure information and advice is clear accurate and complete.
14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. There is a right of appeal against the content of an EHC Plan including the special educational provision (SEP) in Section F and the placement named in Section I. Appeal rights only arise in respect of a final Plan (not a draft).
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 following:
1. 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.
2. 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.
3. 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);
4. Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
5. The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
16. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). The EP has a maximum of six weeks to provide the advice. 

17. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative provision (AP)
18. Where it is clear a child will be away from school for 15 days or more (either consecutively, or cumulatively), councils should liaise with medical professionals to ensure there is minimal delay in arranging appropriate provision where required. While 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. It also states the provision should be in place by the sixth day of absence, or from the first day where the absence is planned. It also states that some forms of provision, such as one-to-one provision, which is more intensive, need not be full-time.

What happened

2023

19. Ms X requested an EHC needs assessment for Y on 2 October when he was in Year 6. The Council refused. Ms X appealed the decision to the SEND Tribunal.
20. Records indicate Y’s attendance for the autumn term of Year 6 was 76% with 14 days of absence. The SEND support service became involved in the Autumn term. Their record of a visit to Y in December indicates he was on a part-time timetable at school and was still struggling with attendance. A SEND support practitioner noted Y’s parents were to contact school and ask about AP in the new year.

2024

21. In January, a SEND support practitioner referred Y to the NHS mental health service. The referral form said Y had significant difficulties linked to his autism, was a ‘school refuser’, had agoraphobic tendencies and could not leave the house even to go to the shops. The SEND support practitioner said Y had not attended school for two months.
22. The Council reviewed its decision not to carry out an EHC needs assessment and overturned it on 4 January, before the Tribunal heard the case.
23. In March, Ms X asked the Council when an EP would be doing a report. The Council replied saying there were shortages of EPs nationally and it had a backlog, which it was addressing by using locum EPs and agencies.
24. A SEND support practitioner visited Y at home at the start of April and noted he would be starting AP the following week. Their note of the visit said, “mum to attend S19 meeting and to feedback.” The Council has provided me with some email exchanges between Ms X and a school attendance support officer in March and April and between the officer and potential AP education providers which it was looking into commissioning, but they had no vacancies. Ms X arranged and paid for on-line mentoring for Y for one hour a week for the summer term.
25. Ms X complained to the Council at the start of April raising the same issues as in her complaint to us. She enclosed a copy of an EP report she had arranged privately and asked the Council to consider this.
26. The Council agreed to use Ms X’s EP report. Internal records indicate senior officers decided the report was fit for use in an EHC needs assessment (and was produced by an agency that the Council commissions for EP reports).
27. The Council consulted with a number of schools in the middle of April. All but one (an independent school) refused Y a place.
28. The Council issued a draft EHC Plan on 1 May
29. The Council issued a final EHC Plan for Y on 28 May. It named a type of secondary placement for Y from September 2024, but not a school. Section K (advice relied on in the Plan) did not reference a council EP report, only the EP report Ms X commissioned.
30. The stage one complaint response said:
• The Council’s EP service provided a report on 4 April and the Council considered this report as well as the EP report she had commissioned
• Consultations began with schools on 16 May
• The final plan was sent on 28 May
• It upheld her complaint about delay in the assessment process and apologised. It was due to increased demand for EHC needs assessments.
31. Ms X escalated her complaint to stage two of the Council’s complaint procedure. She said the apology was not sufficient and Y still did not have a placement for September (when he was due to start secondary school). She said she had never seen the Council EP’s report.
32. The stage two response to Ms X’s complaint apologised for the delay and said:
• The funding panel had discussed Ms X’s preferred placement and the Council had also consulted with two other schools. There would be a decision on the placement within two weeks.
• It was sorry for the delay in responding to her request for AP under Section 19.
• The two providers she had suggested had been contacted and one had no space. The Council was willing to commission the second provider and would look to put this in place for Y. A third provider also confirmed there was a vacancy for Y
• The Council offered a payment of £800 to reflect the time Y had not been attending school.
33. In June, Ofsted issued the Council with a SEND Improvement Notice after an inspection in March. This included a requirement for the Council to draw up an improvement plan to ‘urgently address the length of time families are having to wait for EHC needs assessments. Leaders should ensure plans are completed in a timely manger so children start to receive the support they need at the earliest opportunity’
34. Ms X was unhappy with the Council’s complaint responses and complained to us in July.
35. The Council told me it commissioned online mentoring for three hours a week starting 3 July and continuing through the school summer holidays and ending in September.
36. At the end of July, the Council issued an amended EHC Plan for Y which named his school placement from September. This was her preferred placement.

Findings

37. I uphold complaints (b) and (d). Y’s final EHC Plan should have been issued within 20 weeks of Ms X’s request for an EHC needs assessment on 2 October 2023, so no later than 19 February 2024. There was a delay of three months causing avoidable distress and frustration and a delay in appeal rights.
38. The Council said in the complaint response that it had obtained EP advice from its own EP. However, it did not provide a copy of this advice to us when we requested it, there is no council EP advice listed in the final Plan and so I conclude there was no council EP report. Giving incorrect information in the complaint response was fault causing avoidable confusion.
39. The Council should have obtained advice from an EP and in failing to do so, it did not act in line with Regulation 6(1). This was fault. Ms X arranged and paid for EP advice privately which the Council used to write Y’s Plan. The Council has a backlog of requests for EP reports caused by a shortage of EPs. Not having sufficient EPs to comply with statutory duties is fault (service failure.)
40. The Council should have considered whether the section 19 duty applied after six days of absence. The Council was aware of Y’s absence from December 2023 when an officer visited Y’s school to discuss his attendance (see paragraph 20). The Council has accepted in its complaint response there was a delay in considering whether to provide Y with AP and when Ms X pushed the issue in July, it agreed to fund on-line mentoring. The evidence indicates the Council had accepted a section 19 duty in March 2024 because officers were approaching specialist providers which had no vacancies. There would be no reason to explore alternative providers if they were satisfied Y had access to suitable education.
41. Y has a loss of full-time educational provision between March and July 2024 as he only received three hours of video game mentoring from the start of July which was nowhere near the full-time provision he was entitled to. The Council should also have considered the section 19 duty between December 2023 and February 2024. There is not enough evidence for me to conclude it would have accepted a duty in this period though: the injustice is avoidable uncertainty about what the decision might have been.

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Agreed action

42. Within one month of my final decision, the Council will issue/make:
• An apology. 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.
• A payment of £300 to remedy the uncertainty caused by the three-month delay in issuing Y’s EHC Plan (a monthly payment of £100 per month outside the statutory timeframes)
• Repayment of the private costs of the EP report as the Council accepted the EP’s advice and used it to write the Plan and there has been no appeal. Ms X needs to provide an invoice to the Council for the cost of the report.
• A payment of £250 to reflect the avoidable uncertainty caused by the failure to consider whether or not Y was owed a duty under section 19 of the Education act 1996 between December 2023 and February 2024
• A payment of £1200 reflect loss of AP between March and July 2024. This takes into account Y was in Year 6, and the Council arranged a small amount of AP in July (The payment agreed takes into account the £800 the Council offered and Ms X accepted as an outcome to the Council’s complaint process)
43. The Council issued a SEND Priority Action Plan in June 2024 setting out actions to increase EP capacity and minimise the delay in assessments. So I haven’t made any recommendations to improve services.

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Final decision

44. I have upheld this complaint finding fault and injustice. The Council will issue an apology and make payments to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman