Summary: Ms X complained of significant delay in the Council’s assessment of her child for an Education, Health and Care (EHC) Plan. She also complained the Council did not provide her child with a suitable education. The Council is at fault for failing to meet statutory timescales and failing to provide a suitable education. It has agreed to remedy the injustice caused by making a payment to Ms X for the loss of education and avoidable distress. The Council has also agreed to make service improvements.

The complaint

1. Ms X complains the Council delayed assessing her child’s education, health and care (EHC) needs and it has failed to provide a suitable education for three years.
2. Ms X says her child has not received the support in her EHC Plan, the school she is on roll at is unable to meet her needs and she has had no support from the Council.

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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 Ms X and the Council as well as relevant law, policy and guidance.
7. Ms 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

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 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
  (Delete irrelevant bullet points)

10. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

11. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  
12. Those consulted have a maximum of six weeks to provide the advice. 
13. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.
14. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

Alternative education

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. 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)
17. 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)
18. 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
19. 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.

20. 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

21. On 30 March 2023, Ms X requested the Council assess her child, Y’s education, health and care (EHC) needs. On 2 May 2023, the decided to assess Y’s EHC needs.
22. On 28 November 2023, the Council issued a draft EHC Plan.
23. On 11 December 2023, the school Y was on roll at told the Council it could no longer meet Y’s needs.
24. Ms X complained to the Council. On 26 September 2024, the Council acknowledged the delay in the EHC needs assessment process and apologised. In acknowledgement of the delay it offered Ms X £300.
25. The Council refused Ms X’s request to escalate her complaint because it was of the view that the Stage 1 response considered her concerns proportionately. It referred Ms X to the Ombudsman.
26. Ms X brought her complaint to the Ombudsman on 30 September 2024.
27. Y’s EHC Plan was finalised on 10 July 2024. It named the type of provision as ‘Specialist’ but it did not name a setting for Y to attend.

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Analysis

Y’s EHC Plan

28. Following Ms X’s request for an assessment of Y’s needs, the Council issued its decision within six weeks. However, it failed to issue the draft EHC Plan by 18 July 2023. This is fault. Taking into consideration the summer holidays, the whole process should have been completed by, at the very latest, 7 September 2023. The Council’s failure to issue Y’s final EHC Plan within statutory timeframes is fault.
29. The delay meant Y did not receive the EHC support they should have during this period. The delay has also caused frustration and uncertainty to Ms X and to Y. The Council has provided Ms X with a remedy of £600 for the injustice caused. This does not appropriately remedy the injustice caused.

Y’s Education

30. Councils have a duty to ensure provision in an EHC Plan is provided. Where the Council names a type of school in the Plan it has a duty to provide a place at that type of school. Where it cannot do so, it must put in place under Section 19 of the Education Act 1996. Section 19 is usually short-term and prompted by circumstances such as illness or exclusion.
31. I find service failure in the Council’s failure to provide a special school place for five terms. This is unacceptable. While I acknowledge the Council has consulted a high number of schools, it has a duty to ensure sufficient places and it can direct many types of schools to admit pupils. I cannot see the Council has challenged any of the schools that have declined a place or considered directing an admission. This case should have been treated as urgent and supervised by managers.
32. The school advised the Council on 11 December 2023 that it could no longer meet Y’s needs. It was at this point the Council should have considered is Section 19 duties. From 11 December 2023 to July 2025, I consider Y has not received a suitable education. I acknowledge the Council provided some high needs funding, but the education was not equivalent to full-time. This also includes a loss of special educational needs provision from 10 July 2024 to July 2025.
33. In the annual review meeting in September 2024 the Council said it could put in place a bespoke package of education but this was not implemented. This caused frustration to Ms X and gave her false hope. The Council says the caseworker left the team and that was why the package was not implemented but the Council should have had a handover process in place for the next caseworker to ensure such important matters were not missed. This is fault and a service improvement is required.

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Agreed Action

34. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise to Ms X;
• Make a symbolic payment of £400 to Ms X to recognise the frustration, distress and uncertainty caused by failing to issue the final EHC Plan within statutory timeframes. I have subtracted the £600 remedy payment the Council has already provided to Ms X.
• Make a payment to Ms X of £5000 to reflect the loss of education and the lack of special educational provision for Y. This is made up of £1000 per term from December 2023 to July 2025. I have taken into consideration the education Y did receive during this period, her special educational needs, her age and the impact on her; and
• Implement the bespoke package of education it said it would to ensure Y does not continue to go without a suitable education.
35. The Council has also agreed that within eight weeks of this final decision, it will ensure it has a handover process between caseworkers and that staff are reminded to complete the handover process when there is a change in caseworker.
36. The Council will provide us with evidence it has complied with the above actions.

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Decision

37. 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