Summary: Mrs X complained about the Council’s actions in relation to her child, Y’s education. The Council was at fault. It failed to provide Y with education for five months after they were permanently excluded from school. It delayed completing an Education, Health and Care needs assessment and subsequently, delayed issuing a final amended Education, Health and Care Plan. The Council also poorly communicated with Mrs X. The Council has already apologised to Mrs X. The Council has agreed to make a further apology to Mrs X and a payment to recognise the education Y did not receive and for the distress and frustration the matter caused her.

The complaint

1. Mrs X complained the Council:
• failed to provide her child, Y, with education when they were excluded from school for several months;
• delayed completing an Education, Health and Care needs assessment in line with statutory timescales for Y; and
• poorly communicated with her.
2. Mrs X said it caused her and her family distress and frustration. She wants the Council to apologise to her and provide her with a symbolic payment for the injustice caused. Mrs X also wants the Council to improve its service to prevent a recurrence of fault.

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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. 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)
5. 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)
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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How I considered this complaint

7. I considered information provided by Mrs X.
8. I considered information provided by the Council.
9. I considered our ‘guidance on remedies’.
10. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Alternative provision following permanent school exclusion

11. The Education Act 1996 (Section 19) provides the basis for statutory guidance. This states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, permanent exclusion, or who are ‘otherwise’ unable to attend school. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
12. If a school permanently excludes a child, councils must arrange full-time education for the child from the sixth day of exclusion.

Education, Health and Care (EHC) Plan

13. Some children and young people with special educational needs and disabilities will have an EHC Plan. The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

Assessment for an EHC Plan

14. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs 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); and
• 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.

Advice and information for EHC needs assessments

15. 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). Those consulted have a maximum of six weeks to provide the advice.

The Council’s complaints policy

16. The Council has a two-stage complaints procedure. The policy states at stage one, the Council will respond to the complainant within 20 working days. If the complainant remains unhappy and wishes to escalate the complaint further, the Council will investigate the complaint further under stage two of its procedure and respond within 20 working days.

What happened

17. Y attended a primary school.
18. Towards the end of December 2023, Y’s school asked the Council to complete an Education, Health and Care needs assessment. In mid-January 2024, the Council wrote to Mrs X and acknowledged the school’s request for an assessment. It said it would consider the request and inform Mrs X the outcome of its decision within six weeks of the date of the request. Towards the end of January 2024, the Council wrote to Mrs X again and said it had decided to complete an assessment. It said if it decided not to issue Y an EHC Plan, it would inform Mrs X of this by mid-April 2024 and if it had agreed to issue an EHC Plan, it would issue it by early May 2024.
19. Towards the end of February 2024, Y’s school had permanently excluded Y from school.
20. At the end of April 2024, Mrs X complained to the Council. Mrs X said she was concerned Y was falling behind with their education as since the school excluded them, they had not received any educational provision. Mrs X asked the Council if Y’s assessment could be prioritised.
21. In mid-May 2024, the Council responded to Mrs X’s complaint and said:
• there was a national shortage of educational psychologists and so it was under pressure to complete assessments;
• it had informed the educational psychologists service Y had been excluded from school. The service was working hard to prioritise the assessments; and
• it would contact Mrs X again as soon as it was able to complete the assessment.
22. Towards the end of June 2024, Mrs X asked the Council to investigate her complaint further. She said:
• the Council’s communication had been poor as since it responded to her complaint, it had not communicated with her;
• the Council had not offered any support to Y. Y was still without any educational provision; and
• it was negatively affecting her and the family.
23. At the beginning of September 2024, Mrs X sought legal advice via a solicitor. The Solicitor issued a pre-action protocol letter to the Council and said it had not completed an assessment and notified Mrs X of its decision of whether to issue an EHC Plan in line with statutory timescales. The Solicitor said the Council must:
• confirm within two weeks of this letter if it has instructed an educational psychologist to complete the assessment. The educational psychologist must produce a report within six weeks of the assessment;
• confirm to Mrs X within two weeks of receiving the report from the educational psychologist, whether it will issue an EHC Plan. If the Council decides to issue an EHC Plan, it must send Mrs X a draft EHC Plan with its decision; and
• issue a final amended EHC Plan within four weeks of issuing a draft amended EHC Plan.
24. The Solicitor’s letter noted Y was due to start a placement at a short stay school.
25. Towards the end of October 2024, the Council provided its stage two complaint response to Mrs X and:
• apologised for its lack of communication with Mrs X, for not responding to Mrs X’s request for a further investigation at stage two within its expected timeframe and for the delay in issuing the EHC Plan;
• acknowledged Y had been without educational provision for five months;
• explained again to Mrs X the delay of the assessment had been caused by a national shortage of educational psychologists with a backlog of cases awaiting assessments; and
• said it was working quickly to resolve the issue. It had now allocated an educational psychologist to complete the assessment and if it decided to issue an EHC Plan, it would issue a draft EHC Plan by mid-November 2024.
26. Mrs X remained unhappy and complained to us. Mrs X told us Y was without any educational provision between the end of February and the beginning of September 2024.
27. The Council received a report from an educational psychologist at the beginning of October 2024. The Council issued a draft EHC Plan at the beginning of November 2024. It then issued a final amended EHC Plan in mid-December 2024.

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Findings

Exclusion

28. Y was excluded from their previous school towards the end of February 2024. The law states councils must arrange full-time education for excluded students from the sixth day of exclusion. In Y’s case, the Council did not do this. The Council was at fault. Y missed out on educational provision for approximately five months between February and September 2024.

EHC needs assessment and EHC Plan

29. Y’s previous school requested an assessment towards the end of December 2023. As the Council had agreed to complete an assessment, it should have told Mrs X its decision to issue an EHC Plan by the beginning of April 2024, to comply with statutory guidance. The Council did not do so and so was at fault.
30. The Council decided to issue an EHC Plan and in line with statutory guidance, it should have done so around the beginning of May 2024. It did not issue an EHC Plan until mid-December 2024, following the report it received from an educational psychologist at the beginning of October 2024. The Council therefore delayed issuing it by approximately seven months. I recognise the delay was caused by a national shortage of educational psychologists however, the Council was still at fault.
31. The delay in completing an assessment and issuing a final amended EHC Plan caused Mrs X distress, frustration and uncertainty, particularly as Y had been without provision for five months.

The Council’s complaint response

32. In her complaints to the Council, Mrs X raised her concern Y had been without education. The Council’s complaint response in May 2024 showed it was aware Y was without education however, it did not inform Mrs X what actions it was taking to address the matter. This was fault and caused Mrs X distress and frustration.
33. The Council delayed responding to Mrs X’s complaint at stage two by approximately four months. In addition, the Council poorly communicated with her in relation to Y not having access to education, the delay in completing the assessment and issuing the EHC Plan. This was fault. The Council recognised it had delayed responding to Mrs X’s complaint at stage two and its poor communication. It apologised to Mrs X which was appropriate. However, I have made recommendations to further remedy the injustice caused by the aforementioned faults.
34. We have recently investigated similar complaints about this Council and recommended service improvements in relation to:
• the delay of EHC needs assessments and obtaining advice from educational psychologists;
• the Council’s duties and responsibilities when children are out of school because of health, exclusion and other reasons; and
• poor complaint handling.

I have therefore not recommended further service improvements. We will continue to monitor the above service improvements through our work.

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Agreed Actions

35. Within one month of the final decision, the Council will:
• apologise to Mrs X for not providing Y with education between February and September 2024; and
• make Mrs X a symbolic payment of £1350 for education Y did not receive between February and September 2024. This equates to approximately one and a half school terms.
36. Within one month of the final decision, the Council will also:
• pay Mrs X £700 for the delay in issuing a final amended EHC Plan. This equates to £100 per month for the delay; and
• pay Mrs X an additional £150 for the distress and frustration it caused her by not providing Y with any provision when they were permanently excluded from school, for delaying issuing a final amended EHC Plan and for its poor communication with her.
37. The Council will provide us with evidence it has complied with the above actions.

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Final Decision

38. I have now completed my investigation. The Council was at fault. It has agreed 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