Summary: Mrs X complained the Council failed to complete an Education, Health and Care needs assessment for her child within legal timescales and is still ongoing. She also said it failed to provide an education for her child for a long period. This has caused significant frustration, distress and uncertainty, and affected her child’s wellbeing and educational attainment. We found the Council at fault. The Council has agreed to apologise and make symbolic payments to remedy the injustice.

The complaint

1. Mrs X complains the Council has failed to complete an Education, Health and Care needs assessment for her child within statutory timeframes, and she is still waiting. She also says the Council has not provided support or proper education for them since September 2023. This has caused significant frustration to the family and her child has missed out on educational opportunities which has impacted them negatively.

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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. 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).
4. 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)
5. 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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How I considered this complaint

6. I discussed the complaint with Mrs X and considered her views.
7. I made enquiries of the Council and considered its written responses and information it provided.
8. Mrs 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

Law and administrative background

Education, Health and Care Plans (EHC Plans)

9. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.
10. 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. It says the following: 

• 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 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).  

11. As part of the EHC needs assessment, councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice.
12. Parents have a right of appeal to the SEND Tribunal. This is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Alternative provision

13. 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 education provision.
14. We issued a focus report “Out of school, out of sight?" in July 2022 (updated in August 2023). This highlighted 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.
15. When 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.

Background

16. Mrs X’s child (“Y”) previously attended the “School”. From September 2023, they struggled with attendance. Y was diagnosed with Autism Spectrum Disorder (“ASD”) the next month. Mrs X said the School made a number of changes and reduced support to Y which affected their ability to cope. The School put in part time timetables and off site targeted interventions which led to some progress. Y continued to experience school based anxieties and stopped attending in April 2024.

What happened – summary of key relevant events

17. In mid-January 2024, Mrs X submitted a request for an Education, Health, and Care (“EHC”) needs assessment for Y. In late March 2024, the Council agreed to assess Y.
18. In mid-April 2024, Mrs X emailed the Council requesting alternative provision for Y, outlining the background above.
19. In late April 2024, the Council responded to Mrs X. After discussion with the School, it was satisfied with the various steps and range of support the School put in place to enable Y to access education. The Council would not provide alternative provision at this stage.
20. A few days later, the Council received a section 19 referral from the School.
21. At the same time, the Council’s Attendance Team had a meeting to discuss Y. It said it invited Mrs X, but she did not attend. It decided to later review the situation again to decide what further action to take, including the option it could start court action. It sent a letter informing Mrs X of this. Mrs X said the Council did not tell her about this meeting before it happened.
22. In early May 2024, Mrs X formally complained. She said the Council was in breach of statutory timeframes for the EHC needs assessment. She also said it dismissed her request for alternative provision. The School had now submitted one, but the Council had not actioned it.
23. In mid-May 2024, the Council sent the referral to an external “Service” for reintegration support to the School.
24. In late May 2024, the Council responded to Mrs X’s complaint at Stage One. It apologised for the delay in the allocation of an Educational Psychologist. It was experiencing a significant increase in EHC needs assessment requests resulting in backlogs. It was currently processing the School’s section 19 referral.
25. In mid-June 2024, the Service started an intervention programme with Y for 12 weeks.
26. In July 2024, the Council responded at Stage Two after Mrs X escalated her complaint. It said reintegration support was always its first approach when a child was not attending school. It reported the Service had worked with Y on several occasions and it was going well. The outcome of the section 19 referral was this support, with the aim to reintegrate them back to the School.
27. Mrs X then complained to us.
28. Since Mrs X’s complaint to us, the Council said since November 2024, Y has been receiving three hours daily tutoring, arranged by the Council.
29. In early January 2025, the Council formally agreed to issue Y an EHC Plan.
30. In response to my enquiries, the Council said it referred Y to the external Service which provided reintegration support for pupils back to their school and delivered support for Social, Emotional, and Mental Health (“SEMH”) needs.

Analysis

EHC needs assessment

31. The Council received the request in January 2024. The Council was around four weeks late when deciding it would assess, and nine months late in formally agreeing to issue an EHC Plan. The whole process should have been completed within 20 weeks. In this case, by early June 2024. It has failed to do so. The Council received the EP advice in late 2024. There has been an excessive delay of nine months since June 2024.
32. I appreciate the delay is caused by a national shortage of EPs, however statutory guidance is clear regarding timescales and the Council failed to meet this; this is fault in the form of service failure. This has caused frustration and uncertainty for Mrs X as she has waited significantly longer than necessary to receive a final EHC Plan. This has also delayed her statutory right of appeal should she disagree with it once issued.
33. The Council has told us it is taken steps to resolve the issues caused by this and to reduce waiting times for EHC Plans. It has an action plan in place which includes reviewing ongoing recruitment and the structure of its EP service.

Alternative provision

34. The investigation is limited to considering the role of the Council. We cannot consider the actions of the School as they are outside our jurisdiction.
35. I recognise Y struggled with attendance since around September 2023, but it appears Mrs X was in contact with the School about this. Mrs X directly contacted the Council in mid-April 2024 about the issues and with her alternative provision request. I cannot find the Council at fault before it was informed of this.
36. Around two weeks later, the Council decided not to provide alternative provision and explained why. It then had a meeting about Y’s attendance. Mrs X said she found out through a letter warning her of further action. I have not seen evidence the Council invited her to this meeting. This is fault causing frustration as Mrs X missed the opportunity to discuss this and her views.
37. Around this time, the Council received the section 19 referral from the School and sent it to the Service two weeks later. The Council has not provided notes of its decision making but this indicated it accepted it had a section 19 duty to Y.
38. Section 19 of the Education Act 1996 places councils under a duty to make arrangements for 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. I recognise the Service’s three month programme positively supported and worked with Y on their SEMH needs and the aim was for reintegration to the School, however, this is not education.
39. We expect education provision to be based on an assessment of the individual child’s needs. But with a lack of records, I cannot see if or how the Council did this when deciding to refer to the Service or whether it considered alternatives such as home tutoring, raising uncertainty as to whether Y could have received educational entitlement sooner, alongside any support with SEMH needs.
40. Taking into account the above, on balance, I find the Council at fault for not providing Y with education between May and November 2024. This caused injustice to Y as they have missed out on educational progression, but I appreciate Y has benefitted from support by the Service’s sessions.
41. It is positive Y has had tuition in place since November 2024 and appears to be working well. I have considered the injustice up to this point. If Mrs X has further concerns about the tuition or Y’s education after this, she should raise a new complaint directly to the Council to give it an opportunity to consider it through its complaints process first.

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Agreed Action

42. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
43. Within one month of the final decision:
• Apologise to Mrs X and Y for the injustice caused by the faults identified (in line with our guidance on making an effective apology);
• Pay Mrs X a symbolic payment of £150 to recognise her uncertainty and frustration with Y’s alternative provision;
• Pay Mrs X a symbolic payment of £1,800 to recognise the impact to Y for the lack of education between May and November 2024. This could be used for Y’s educational benefit; and
• Pay Mrs X a symbolic payment of £900 to recognise her injustice with the delayed EHC needs assessment so far. This is calculated at £100 per month from the statutory deadline of June 2024, which is when the Council should have issued a final EHC Plan.
• The Council should pay a further £100 per month from the date of the final decision, up until a final EHC Plan is issued, to recognise the continued injustice. This is limited to six months from the date of the final decision. This is in line with our Guidance on Remedies.
44. Within two months of the final decision:
• It should share a copy of our “Out of school, out of sight?" focus report to relevant staff. It should highlight key points to ensure officers are aware of what they should consider when there is a duty for it to act, including assessing the child’s individual needs and circumstances and when it must make alternative arrangements to provide a suitable education. It should also remind staff to properly record its decisions at the time.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I find fault causing injustice. The Council has agreed to actions to remedy the injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman