Summary: Ms X complained the Council did not provide her child with suitable education when they were out of school and delayed carrying out an Education, Health and Care needs assessment. We found the Council was at fault. As a result Ms X had to wait longer than she should have for a decision on her child’s Education, Health and Care needs assessment and her child has missed education. To remedy the injustice caused the Council agreed to apologise and make payments to Ms X for the loss of her child’s education and the distress caused.

The complaint

1. Ms X complains the Council delayed completing an Education, Health and Care needs assessment for her child and did not put in place suitable education when her child was out of school.

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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. 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

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

Alternative provision

7. Under section 19 of the Education Act 1996 councils have 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.
8. 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))
9. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
10. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
11. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
12. 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)
13. 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. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Special educational needs

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. 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. 
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: 

• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.

Background

16. Ms X’s child, Y, started a mainstream secondary school in September 2023. By November 2023, Y stopped attending school. Ms X said Y found attending school difficult and would have meltdowns and hurt themself. Ms X said this started in September 2023 and gradually got worse until Y stopped attending school completely in November 2023.
17. Y’s school did put in place some adjustments for Y, however Ms X said Y could not cope with physically coming into school.
18. On 30 January 2024, Ms X asked the Council to carry out an EHC needs assessment for Y.
19. On 8 March 2024, the Council agreed to carry an EHC needs assessment for Y.
20. Y was offered alternative provision within their school in September 2024.
21. Y also had an assessment from an Educational Psychologist in September 2024. The Council received the Educational Psychologist’s report in October 2024 and put Y’s case to its placement panel on 10 December 2024. The panel decided not to issue Y with an EHC Plan. Ms X has appealed this decision.

Ms X’s complaint

22. Ms X complained to the Council in May and June 2024 as she had not heard anything further from the Council about Y’s EHC needs assessment. Ms X also complained Y was still out of school with no education.
23. The Council responded and told Ms X it had not received advice from an Educational Psychologist yet due to national shortages. Once it received this advice it would put Y’s case to its placement panel to decide whether to issue an EHC Plan. The Council said Y’s school had put in place reasonable adjustments for Y to attend but recognised these had not been successful. The Council said it would work with the school to put in place an induction program with the view of Y attending alternative provision within the school.
24. Ms X progressed the complaint through three stages of the Council’s complaints process. In its final response the Council told Ms X:
• It recognised Y was entitled to alternative education from 14 December 2023 and upheld Ms X’s complaint. The Council said it recognised Y’s school put in place reasonable adjustments but accepted these did not work and it should have regularly reviewed these.
• It upheld her complaint about delays around Y’s EHC needs assessment. The Council said it was making the following improvements to its service to address the delays:
1. Increase its staffing.
2. Assess the options to find further external Educational Psychologists.
3. Introduce a more robust monitoring system to ensure accountability throughout the EHC needs assessment process.
4. Improve its communication with parents and carers.
5. Enter into an agreement with the Department for Education known as a Safety Value Agreement which means more funding for SEND.

Analysis

25. Ms X asked the Council to assess Y’s needs on 31 January 2024. As the Council decided not to issue an EHC Plan for Y it should have told Ms X this by 21 May 2024, i.e. within 16 weeks of Ms X’s request. The Council did not provide Ms X with its decision not to issue an EHC Plan until 16 December 2024, seven month late. This was fault. As a result Mrs X’s appeal rights to challenge the content of the EHC Plan were delayed by seven months. This is an injustice to and Mrs X.
26. Y stopped attending school in November 2023. The Council recognised Y was entitled to receive alternative education from mid-December 2023. Failure by the Council to put in place any alternative education until September 2024 was fault. While it is welcomed the Council recognised this, it did not offer Y or Ms X a remedy for the injustice caused.
27. As Y was not at school and did not have any alternative provision in place they received no education for this period. This is an injustice to Y.
28. When deciding on a remedy for loss of education our guidance on remedies recommends a payment of between £900 and £2,400 per term. In this case Y was without alternative provision for two terms as the Council secured provision for September 2024. In coming to a suitable figure I considered Y did not have an EHC Plan and did not receive any provision for this period. I also considered Y was in Year 7 which was a critical stage of their education.
29. Normally we would make a service improvement recommendation for the Council. In another recent complaint we investigated, the Council agreed to put in place measures to ensure it properly considered whether to provide alternative education and kept this under review. The Council also agreed, in its final complaint response to Ms X that it would put in place the above points from a) to e). Because of this, it is right to give the Council time to put these changes into place to improve its service.

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Agreed Action

30. Within one month of my final decision, the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Provide Ms X with a written apology for the above faults. 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 Ms X £700 to recognise the avoidable distress caused by the delays in deciding whether to issue Y with an EHC Plan.
• Pay Ms X, for the benefit of Y’s education, £4,000 to recognise the loss of education to Y between December 2023 and July 2024. This is calculated as £2,000 per term for two school terms.
31. The Council should provide us with evidence it has complied with the above actions.

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Decision

32. I find fault causing injustice. The Council has agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman