Summary: Mrs X complained the Council failed to provide alternative education for her child Y when they were unable to attend school between September 2023 and August 2024. Mrs X also complained the Council delayed in completing an Education, Health and Care (EHC) needs assessment and issuing an EHC Plan for Y. The Council failed to consider if it should provide Y alternative provision and delayed issuing an EHC Plan for Y for 35 weeks which resulted in Y missing out on some special educational provision for two academic terms. The Council will make a payment to Mrs X to recognise the injustice caused by the faults and act to improve its service.

The complaint

1. Mrs X complained the Council failed to provide alternative education for her child Y when they were unable to attend school between September 2023 and August 2024. Mrs X also complained the Council delayed in completing an Education, Health and Care (EHC) needs assessment and issuing an EHC Plan for Y. Mrs X said Y missed out on education and special educational provision, and she had to pay for education and provision and the whole family have been caused extreme distress. Mrs X wanted the Council to apologise, reimburse the financial costs and pay the family compensation for the distress they experienced.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. 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

Relevant legislation and guidance

Education, Health and Care Plans

8. 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. 
9. 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 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.
• 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);  

10. 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). 
11. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

Alternative education

12. 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.
13. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
14. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

15. Y is of secondary school age and lives at home with their parents. Y was on roll at School 1, a mainstream secondary school. Y has neuro-differences which means they have special educational needs that makes it difficult for them to attend school.
16. School 1 made an EHC needs assessment request for Y to the Council at the beginning of September 2023. It said Y was struggling to attend school, had been receiving a reduced curriculum since October 2022 and was currently only able to spend one hour a week one-to-one in school with a specific staff member. School 1 outlined all the actions it had already taken to support Y in school.
17. The Council agreed to carry out an EHC needs assessment for Y in October 2023. It requested advice from an Educational Psychologist (EP) which it received at the end of November.
18. An education welfare officer (EWO) from the Council began working with School 1 and the family in November. In December the EWO attended a meeting with Mrs X and School 1. The records of the meeting showed that at the time Y was not attending school, but School 1 said it could meet Y’s needs. Mrs X was paying for Y to receive an unspecified amount of tuition and art therapy sessions.
19. School 1 agreed to pay for Y’s tuition and art therapy sessions until the end of the academic year. The records do not show how much provision Y received. Mrs X said Y received two hours of tuition and one hour of therapy per week. The records show the EWO stopped supporting the family at this point.
20. Mrs X complained to the Council in January 2024. She said Y had not been able to attend school for most of 2023 due to their needs not being met. She said the EHC needs assessment was overdue and the Council was ignoring all of her contacts. Mrs X said the situation was having a huge impact on Y, the family and her ability to run a business. Mrs X wanted the Council to provide Y with an appropriate education and compensation for her costs and the loss of her business.
21. The Council responded to Mrs X’s complaint in May 2024. It said it had not been aware of Y’s absence from school until November 2023 but accepted it failed to consider if it owed them a section 19 duty and could not make the decision it owed a section 19 duty retrospectively. It went on to say it had failed to provide alternative provision for Y between June 2023 and February 2024. It said from February 2024 an EWO had been working to ensure suitable provision was in place for Y.
22. The Council said it had received EP advice for Y’s EHC needs assessment but the SEND manager had asked for further professional advice from the senior EP which it was waiting for to be able to decide whether to issue an EHC Plan. It said the delay was caused by the volume of work and a lack of staff in its EHC team. It said it would decide whether to issue an EHC Plan by the 19 April. It accepted it had not communicated with Mrs X and said this was due to staff capacity. It apologised for the distress this caused Mrs X.
23. The Council offered Mrs X a payment of £1,900 (£900 per term) to recognise the education Y missed. Mrs X told the Council the payment was insufficient to reflect the impact on the family and the financial loss caused to her. The Council considered Mrs X’s representations and offered a payment of £2,600.
24. Mrs X complained to the Council at stage two in June 2024. She said the Council had still not issued a decision on whether to issue Y an EHC Plan, its communication was still poor and the payment it had offered was insufficient. Mrs X said Y’s provision was only in place because she had arranged it.
25. The Council told Mrs X of its decision to issue an EHC Plan for Y at the end of June and provided a draft Plan for Mrs X’s comments. Mrs X told the Council she wanted Y to receive an education other than at a school.
26. The Council told Mrs X at the end of August as she had not provided any new or additional evidence for it to consider it would not consider her complaint at stage two. The Council directed Mrs X to us if she remained dissatisfied. Mrs X brought her complaint to us the following day.
27. The Council issued a final EHC Plan for Y in mid-September. The EHC Plan shows the reports provided by relevant professionals were all dated prior to the end of November 2023. The EHC Plan stated Y should attend School 1.
28. Mrs X stated Y was still not able to attend School 1 and School 1 arranged for Y to receive the original two hours of tuition plus 15 hours of week of art provision to meet the special educational provision set out in their Plan. Mrs X did not appeal the content of the Plan to the SEND Tribunal.
29. In response to my enquiries the Council stated it did not have any information on what provision Y received during the period investigated. It also stated it had not taken any action to alleviate the capacity issues identified in its EHC team as a result of Mrs X’s complaint.

My findings

Alternative provision

30. The Council was aware from the beginning of September that Y was not attending school as the information was provided in the EHC needs assessment request. The Council should have considered at that time whether it owed Y a section 19 duty. The Council has accepted it did not do so and that was fault. Although the school provided some provision from February 2024 I have seen no evidence the Council considered if the provision was sufficient and if it therefore did not owe a section 19 duty in February 2024. The Council’s failure to consider its section 19 duty to Y between September 2023 and September 2024 leaves uncertainty for Mrs X about what action the Council would have taken had it properly considered the matter. The Council has conducted its own investigation and has offered a financial remedy for the injustice caused; further investigation of that point would not achieve anything more. It is open for Mrs X to accept the Council’s offer.

EHC Plan

31. The Council received the EHC needs assessment request for Y at the beginning of September 2023 and in line with the guidance, should have issued a final Plan by mid-January 2024. The Council did not issue the final EHC Plan until mid-September which was a delay of 35 weeks and was fault.
32. The Council stated the EHC Plan was delayed as it waited for additional information from a senior EP. However, the timescales for collating reports are set out in the statutory guidance and the EHC Plan shows the Council had all the reports it relied on in November 2023. With all the reports in hand it should have issued the EHC Plan in line with the guidance.
33. The delay was fault and it caused Mrs X frustration. Had the Council acted without fault and issued the EHC Plan in line with the guidance Y would, on a balance of probabilities, have received the 15 hours a week of art provision earlier. Y missed out on two terms of special educational provision.

Communication and complaint handling

34. The Council has accepted its communication with Mrs X was poor and apologised for the distress this fault caused her. However, there is no evidence the Council improved its communication after the complaint and Mrs X continued to complain about the lack of communication. That was further fault.
35. The Council took five months to respond to Mrs X’s complaint at stage one, and three months to tell her it would not consider her complaint at stage two. Both of those responses were delayed which was fault and caused Mrs X frustration. In the Council’s stage one response it told Mrs X it would make a decision by a date that had already passed which was fault and caused Mrs X further frustration and uncertainty.

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Action

36. Within one month of this decision the Council will:
• write to Mrs X and apologise for the avoidable frustration and uncertainty she was caused by the Council’s faults and pay her a symbolic amount of £250 to recognise the same; and
• apologise for the two academic terms of special educational provision Y missed as a result of the Council’s delay in issuing their final EHC Plan and pay Mrs X £1,600 to recognise the same.
37. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
38. Within three months of this decision the Council will provide written guidance to relevant staff members on when and how it should consider its section 19 duty to children who are not attending school. The guidance will include the importance of identifying those children through information provided on EHC need assessment requests and communicating this to the relevant office or education welfare officers.
39. Within three months of the final decision the Council will review the capacity in its EHC team to identify the action it needs to take to ensure:
• EHC needs assessment and EHC Plan writing is conducted in line with the timescales set out in statutory guidance;
• It communicates with parents, children and young people at appropriate intervals during the process; and
• Complaints are responded to without undue delay.

The Council will create a specific, measurable and timebound action plan to complete any actions it has identified.

40. The Council will provide us with evidence it has complied with the above actions.

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Decision

41. I find fault causing injustice. The Council has agreed to the recommendation I made to remedy the injustice and improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman