Summary: Miss X complained that the Council did not deal with her request for an Education Health and Care Plan (EHC Plan) within statutory timescales and her daughter, Y, did not receive a suitable education while out of school. We found there was delay in assessing Y and issuing an EHC Plan. We also found the Council did not have sufficient regard to its duty to ensure Y received a suitable education. We recommended an apology, a payment to recognise distress and a symbolic payment to recognise education that Y missed as a result of the fault we found.

The complaint

1. Miss X complained the Council did not deal with her request for an Education Health and Care Plan (EHC Plan) within the timescales the law requires. She also complained that the Council failed to ensure her daughter received an education when she was unable to continue attending school in March 2024.
2. Miss X explained the situation was stressful for them as parents and her daughter’s mental health and wellbeing was affected.

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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. 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 Miss X and the Council as well as relevant law, policy and guidance.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments I received before making a final decision.

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What I found

Timescales and process for EHC Plan assessment

8. 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 a council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision within six weeks.
• If the council decides not to conduct an EHC needs assessment it must provide information about the applicant’s 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).

Section 19 of the Education Act 1996

9. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
10. The Council’s Section 19 duty 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)
11. 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)

Statutory Guidance; ‘Ensuring a good education for children who cannot attend school because of health needs’

12. The law does not define full-time education but this statutory guidance says that 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.
13. The guidance 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”.
14. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

Focus Report: Out of School, Out of sight?

15. 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
16. 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.

What Happened

EHC Plan Assessment

17. On 17 January 2024 Miss X requested an assessment for an Education, Health and Care Plan (EHC Plan) for her daughter, Y.
18. On 12 February the Council initially stated it would not assess her daughter. It reversed this decision four days later on 16 February, agreeing to undertake an assessment.
19. There was a significant delay in carrying out the assessment and deciding whether to issue an EHC Plan. This was largely caused by the lack of availability of an Education Psychologist to assess Y.
20. On 28 October the Council issued a draft EHC Plan. A final EHC Plan was issued on 11 November 2024.

Provision of Education

21. The Council told us that Y had been receiving some additional support while at school since September 2023. She did not have an EHC Plan at this time.
22. Miss X advised the Council in April that her daughter’s attendance was only 65% due to significant anxiety and school refusal as she was not getting the support she needed. The Council responded, explaining the difficulties of assessing children for EHC Plans. It provided some links to a toolkit and advice on its website for helping children with health-based attendance issues. This referred to alternative provision and stated it was the school’s responsibility to make a referral for alternative provision. It also stated Y’s school was receiving extra funding at the top of the scale for Y while she was under assessment for the EHC Plan. The Council encouraged Miss X to speak to the school about what could be put in place in the meantime.
23. On 29 April there is evidence Miss X queried what the school was using Y’s funding for while she was not at school. The Council asked the school to consider tutoring for Y. The school told the Council what support that had been provided up to that point. It stated Y had been attending SEN sessions in a small group environment and the school had made adjustments so Y could avoid crowds. It stated it had not seen any extra funding for Y yet but the school was providing support. It stated that when a teacher asked Y about attending some mainstream lessons, this appeared to cause Y’s most recent level of distress.
24. The Council provided school attendance records that show Y stopped attending school from 30 April. Miss X emailed the school and the Council on 30 April to confirm Y was unable to attend school. She explained the impact it was having on Y’s mental health and despite trying hard, she could no longer cope. She noted an officer had agreed to see if suitable alternative provision could be provided until the EHC Plan was in place.
25. The school asked Miss X to obtain medical evidence to specifically state that Y was unfit to attend school due to her high levels of anxiety. It stated, with that evidence, the school could apply to a specialist alternative education provider (Alternative School A). This was stated to be provision that Y could attend three times per week for a couple of hours.
26. During May there is evidence the school attempted, without success, to obtain a letter from Y’s GP about her fitness to attend school. The GP stated it was the role of Child and Adolescent Mental Health Services (CAMHS) to decide this.
27. On 8 May Miss X reiterated Y was not in school at all. She stated the school could not source any form of alternative provision because her GP would not write a medical letter. Miss X asked the Council about its duty to provide an education where this was not being provided. Miss X also queried what funding the school had received. The Council acknowledged these queries but it appears Miss X received no response to them.
28. On 10 May the Council also spoke to the GP surgery and acknowledged that the GP would not provide a letter. An officer suggested the school started online activities and online learning while Y was at home and possibly some work from the toolkit on the council website to focus on her emotional wellbeing.
29. On 13 May Y’s school set out options for Y to either to restart attendance at school in the quiet setting she had been attending previously), send work home for Y, refer her to an online education provider to do online learning or wait for CAMHS to provide medical evidence to allow them to refer her to a specialist placement (Alternative School A).
30. The Council told us it received a copy of a part-time timetable from the school in mid-May 2024. It set out a two-week schedule. In week one, Y was to receive 9 hours of teaching hours. In week two, Y was to receive 15 hours. The plan did not specify what the content of these hours was specifically.
31. Although a part-time timetable was produced in May, the evidence suggests that Y barely attended school between May and the end of the summer term.
32. In July Miss X complained about the ongoing delay in the EHC Plan process. In its response, the Council apologised and gave an update. It stated extra funding had been agreed with the school in the meantime and payments were generally made retrospectively. It stated the funding would allow the school to make arrangements to put additional support in place. It again encouraged her to discuss with the school ways that the support could be utilised.
33. I understand Y’s school applied to Alternative School A at the end of the summer term. As at 10 September it was awaiting a response. The school also suggested a number of alternative provision options, such as animal therapy or online 1:1 tutoring. It is not clear if any of these were arranged.
34. In September Miss X told the Council she had been offered a place at Alternative School A, some distance from their home. However, she received conflicting information about transport required to make it accessible. The SEND team advised her to contact the transport team to organise this. However, when she did, the transport team told her the Council could only provide this once a child had an EHC Plan.
35. On 25 September the Council sent a further response to Miss X’s complaint. It apologised for the delay in assessing Y for an EHC Plan and agreed communication could have been improved. It offered Miss X £150 as a symbolic gesture given the delay. The Council apologised that Y had been out of education for 10 months. It acknowledged the impact and resulting stress caused by this and offered Miss X £900 to recognise it.
36. The Council received a further part-time timetable dated 30 September 2024. The school’s records indicate that Y began attending school again part-time and that she was receiving some educational provision.
37. On 19 November the Council issued Y’s EHC Plan.
38. In December the Council responded about the transport issue. It apologised for the confusion about transport for Alternative Provision A. However, it noted since that time, Y’s EHC plan had been issued, naming her original school and setting out support she required. It also noted Y had been able to return to school part-time.
39. In response to our enquiries, the Council acknowledged that it had not adequately considered the suitability of the part-time timetables and they had not been kept under review. It stated that the increase in hours set out in September suggested progress was being made to reintegrate Y.
40. The Council stated the school had been instructed to discuss the options for expanding the alternative provision but it did not know if this happened. The Council noted the school had consistently delivered the part-time timetable since the end of September 2024.

What should have happened

EHC Plan Timescales

41. The law sets out the timescales within which a child should be assessed for an EHC Plan and how long it should take to issue a plan if a council agrees to provide one.
42. The Council decided it should proceed with an assessment on 16 February, which was within the six weeks required by the law. However, there was then a significant delay in carrying out the assessment. This was because there was no Educational Psychologist (EP) available to carry out the assessment. We are aware that there is a national shortage of EPs and the Council has attempted to resolve the issue in its area. However, the law says that the process of issuing an EHC Plan should take no more than 20 weeks. In Y’s case it took just over double this amount of time as a result of the delay in the assessment. The delay in assessing Y for an EHC Plan represents Service Failure.

Provision of Education

43. A council’s duties under Section 19 are intended to cover circumstances where it is not reasonably possible for a child to take advantage of their existing school placement. Councils have a duty to provide education for children who cannot attend school due to illness or for other reasons. Where it is clear a child will be away from school for 15 days or more (either consecutively, or cumulatively), and no suitable education is being provided, councils have a duty to arrange alternative provision.
44. However, statutory guidance makes it clear that Councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has already made arrangements to deliver suitable education outside of school.
45. So, when a child is not attending school, we would expect councils to:
• Promptly liaise with professionals involved in a child’s education and welfare and their parents to understand the situation and the reasons for their non‑attendance;
• Consider the available evidence to decide if a child’s existing school place remains available and accessible to them, and if any alternative provision they are receiving is suitable.
• be able to show that they have objectively considered their duties and the points above when making decisions.
46. From 30 April 2025 Y was not attending school. There is evidence the Council was aware of this and in contact with Miss X and the school. Council officers made some suggestions about provision that might be considered and resources that may be used. They also made contact with Y’s GP. However, I am not persuaded that the Council had sufficient regard for its duties and properly considered its role. I say this because, despite attempts by the school and the Council to obtain a GP letter, there is no evidence that the Council reached a decision about whether Y was too ill to attend school.
47. The Council did not make a decision that Y’s existing school place was still available and accessible to her. i.e. it did not consider that Y should be still attending school. Miss X has explained that Y had significant anxiety. So, on the basis that the Council has accepted Y was too ill to attend school, I considered how the Council considered its Section 19 duties.
48. Y was not receiving a full-time education while absent. I found the Council has not demonstrated how it decided that the education Y received, was suitable. The Council asked the school to make provision and made some suggestions, but it does not appear to have ensured that what was in place was being delivered, or was suitable. I say this because:
• The Council received a part-time timetable in late May, but this was two weeks after she stopped attending. The timetable is not detailed and there is no evidence the Council considered if the provision it contained was a suitable education for Y in the circumstances.
• It was not reviewed or followed up subsequently, and there is little evidence that Y attended to receive what it set out. She remained largely absent from school. Y remained absent and on this timetable until 30 September.
• From 30 September, Y returned to school part-time. Again, it is not clear how the content was assessed as being suitable. However, there is evidence that Y began to attend to receive some provision from 30 September.
49. I found the failure to properly consider its duties is likely to have led to Y not receiving a suitable education between 30 April 2024 and mid-November when her EHC Plan was issued. The impact was likely greater up to 30 September 2024. I have taken this into account when deciding on a remedy for the complaint.
50. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. We take account of the severity of a child’s SEN, any provision that was made and other factors. In Y’s case, I found she was likely to have been without a suitable education for one and a half terms. The Council should make a payment of £2250. This represents a payment of £1800 for the period between April and the end of the summer term, 2024, and £450 to recognise that more additional provision and attendance was being achieved from 30 September to mid-November 2024.
51. I have also recommended the Council makes a payment of £300 to Miss X to recognise the distress caused by the delay in assessing Y for, and issuing Y’s EHC Plan.
52. The sums in paragraphs 49 and 50 are instead of (not additional to) the payments the council had already made to Ms X. The Council (and Ms X) confirmed that it had already paid her £1,050. So, I have clarified in my recommendation below that the total outstanding amount to be paid to Ms X is £1,500.

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Action

53. Within four weeks of our final decision the Council should:
54. Send a written apology to Miss X and to Y for the delays in assessing Y for an Education Health and Care Plan and for the failure to make suitable provision while she was absent from school. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
55. To recognise the distress caused by the delay in assessing Y for an Education health and Care Plan and the delay providing it, the Council should pay Miss X a total of £300. As the Council has already paid £150 this means it should now pay an additional £150.
56. To recognise that Y did not have a suitable education between April 2024 and November 2024 the Council should pay Miss X, for Y, a total of £2,250. As the Council has already paid £900 this means it should now pay an additional £1,350.
57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. 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