Summary: Ms X complains about delays in the Education, Health and Care Needs Assessment process regarding her child, Y. Ms X also complains Y has been out of education since September 2023. Ms X says this has caused both her and Y distress and frustration. We have found fault in the actions of the Council for delays in the Education, Health and Care Needs Assessment for Y and for failing to provide alternative education. The Council has agreed to issue an apology and pay Ms X a financial payment.

The complaint

1. Ms X complains about delays in the Education, Health and Care Needs Assessment (EHCNA) process regarding her child, Y. Ms X also complains Y has been out of education since September 2023.
2. Ms X says this has caused both her and Y distress and frustration.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
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 SEND 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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What I have and have not investigated

8. I have investigated the delays in how the Council carried out the assessment of Y’s special educational needs. I have also investigated how it responded when Ms X told it Y’s needs were not being met receiving education at home.
9. I have not investigated the Councils decision to refuse to assess Y in early 2023 as this was appealed to the SEND Tribunal.

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How I considered this complaint

10. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
11. Ms X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

12. 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.
13. 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 (EHCNA) 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).  

14. The council must consult with the parent or young person’s preferred educational placement who must respond within 15 calendar days. There is a right of appeal to the Tribunal against various Council decisions about EHC plans. This includes a decision not to carry out an EHC needs assessment.

Alternative Provision

15. 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.
16. We have issued 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. Out of school, out of sight? published July 2022
17. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

18. 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

19. Ms X applied for an EHCNA for Y in early March 2023. The Council declined to complete the assessment at that time.
20. Ms X began to electively home educate Y in September 2023 as she felt she had no choice but to take this option.
21. Ms X applied again to the Council to request an EHCNA in November 2023. The Council again declined to assess Y in January 2024.
22. Ms X told the Council in February 2024 it would not be viable to home educate Y forever. Ms X then appealed the Council decision not to assess Y in late February 2024.
23. The Council agreed to assess Y in early April 2024.
24. Ms X complained to the Council in mid-September 2024 about delays in agreeing to assess Y and the delay in completing the assessment once it agreed to assess. Ms X also told the Council Y was at home with unmet needs and she needed help finding an appropriate setting for Y.
25. The Council responded shortly after to explain the delays and the steps it had taken to try to improve this. The Council also provided Ms X with guidance about regaining a place at school for Y and copied in its Home Education Team.
26. Ms X raised a further complaint in October 2024 about the delay in completing the EHCNA for Y.
27. The Council responded shortly after to again explain the reasons for the delay.
28. The Council put online learning in place for Y in mid-January 2024 while it awaited the outcome of the EHCNA as it was not clear what setting would be suitable for Y.

Analysis

Education, Health and Care Plans

29. The Council agreed to begin the EHCNA for Y in April 2024. The Council should have completed this process within 20 weeks. However, it is still ongoing. This has taken around an additional seven months so far and the process is not yet complete. This is fault and has caused Ms X distress and frustration. In addition, Ms X has been denied any appeal rights which may have arisen following a decision or EHC Plan.

Alternative provision

30. Ms X told the Council in September 2024 Y’s needs were not being met at home and asked for its help to find a suitable setting for Y.
31. The Council said it put in place online tutoring for Y in January 2025 because it was unclear what the result of the EHCNA would be or what setting would be suitable.
32. I have not been able to see what action the Council took between September 2024 and January 2025 when it put in place the online tutoring. However, there appears to be four months where the Council were aware Y was not receiving suitable education and putting this in place. This is fault.
33. The Councils fault has meant Y has lost out on educational provision for this period.

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Action

34. Within one month of a final decision the Council should:

• Write to Ms X to apologise for the faults identified. 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 distress and frustration caused in the delay in completing the EHCNA. This is calculated at roughly £100 per month.
• Pay Ms X £1,750 to reflect Y’s loss of education between September 2024 and January 2025.
• Complete the EHCNA process and either issue an EHC Plan for Y or a decision not to issue.

35. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman