Summary: Mrs X complained the Council delayed issuing her child’s education, health and care (EHC) Plan and it failed to provide her with an education when she was unable to attend school. We found the Council at fault for delays in finalising the EHC Plan and arranging a suitable education. The faults caused a loss of education and avoidable distress. The Council has agreed to remedy the injustice caused by apologising in writing and providing a payment to the family.

The complaint

1. Mrs X complains the Council failed to adhere to the statutory timescales for finalising her child’s Education, Health and Care Plan and it failed to provide alternative education to her child when she was unable to attend school.
2. Mrs X says this has resulted in her child missing out on education for nearly a whole academic year and it has caused avoidable distress to the family.

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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. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
6. 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)
7. 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

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. 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 law and guidance

Education, Health and Care Plans

10. 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. 
11. 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.
• 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)  

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. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

15. Mrs X has a child, Y, who was on roll at a mainstream primary school. In September 2023 her attendance began to decline due to special educational needs and mental health needs.
16. In November 2023, Mrs X notified the Council’s Education Welfare Service that she was unable to bring Y to school. The school made work available for Y to complete at home but she was unable to cope with this.
17. On 6 December 2023 the Council received a request for Y’s education, health and care needs to be assessed. Mrs X again advised the Council that Y was not in receipt of an education.
18. The Council says the final EHC Plan was due to be finalised by 24 April 2024, but it received the advice from the EP after this date, in May 2024. It also attributes the delays to a high number of assessment requests the service received and challenges in determining the most appropriate setting for Y due to her complex needs and non-attendance at school. The Council apologised to Mrs X for the delay.
19. The Council finalised Y’s EHC Plan on 26 July 2024.
20. In August 2024, Mrs X arranged and paid for alternative provision.
21. The Council arranged alternative provision in the form of tuition and this commenced on 6 September 2024.
22. On 1 November 2024 the SEND Tribunal received an appeal from Mrs X. Mrs X appealed Sections B (Y’s special needs), section F (Y’s special educational provision) and Section I (the placement).

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Analysis

Y’s final EHC Plan

23. The evidence shows the Council finalised Y’s EHC Plan 13 weeks later than it should have. The Council’s failure to complete the EHC assessment in accordance with the statutory timeframes is fault. The whole process should have been completed within 20 weeks.
24. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes is fault.
25. The delay in completing the assessment and issuing the final EHC Plan caused Mrs X frustration and uncertainty. It also delayed her right to appeal to the SEND Tribunal. I consider the Council should make a symbolic payment to recognise the frustration and distress Mrs X has experienced.
26. To avoid duplication, I have not made any recommendations for service improvements because the Council has undertaken work on ensuring council officers are aware of statutory timescales with regards to EHC Plans and the importance of adhering to them.

Alternative education

27. Councils have a duty to arrange suitable education for a child it knows cannot attend school, whether or not they are on the roll of a school.
28. The Council says it was not able to provide any educational support because it was unaware Y was not accessing education. It says the reason for this is because the school failed to make a referral to the Council’s Gateway Service. The school may not have made a referral but this does not change the fact the Council was made aware in November 2023 that Y was not attending school. It was at this point the Council should have considered its Section 19 duty.
29. I acknowledge the school was recording Y’s attendance as ‘educated off site’ and it made work available for Y to complete at home. The Council should have made necessary checks to satisfy itself that Y was receiving a suitable education. There is no evidence to demonstrate the Council did this. Had the Council made the necessary checks it would have found that Y was unable to engage with the work set by the school, Y was not in receipt of any education and Mrs X was finding it challenging that Y was out of education and at home full-time.
30. I find the Council at fault for failing to ensure Y was receiving a suitable education as early as November 2023. Alternative provision was not arranged for Y until September 2024. The fault resulted in Y not receiving a suitable education for nearly a whole academic year. This is a significant injustice.
31. Y being out of education impacted upon Mr and Mrs X’s work commitments and they describe the time as stressful as they struggled to manage Y’s needs at home.
32. Our Guidance on Remedies says that when a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment. This is to acknowledge the education they have missed and help them to catch up.
33. In this instance I consider £2700 is appropriate. In considering an appropriate remedy I considered factors relating to Y’s age, special educational needs and individual circumstances.
34. I also consider it appropriate for the Council to remind its officers that its Section 19 duty is engaged from the point it becomes aware a child or a young person is not attending school. A formal referral via the Council’s Gateway Service is not required for the Council’s Section 19 duty to be engaged.

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Agreed Action

35. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise in writing to Mrs X for the faults identified in this statement and for the impact they had on the family;
• Pay Mrs X £2700 to acknowledge the loss of education from November 2023 to July 2024. This payment should be used by Mrs X for Y’s educational benefit.
• Pay Mrs X £300 in recognition of the delay in issuing Y’s final EHC Plan;
• Pay Mrs X £500 in recognition of the avoidable distress caused to the family by the identified faults.
• Reimburse Mrs X £98 for two alternative provision sessions she arranged when Y was not in receipt of any education.
36. The Council has also agreed that within eight weeks of this final decision, it will remind officers that its Section 19 duty is engaged as soon as it becomes aware a child or young person is not attending school, regardless of whether the Council receives a formal referral through its Gateway Service.
37. The Council will provide us with evidence it has complied with the above actions.

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Decision

38. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman