Summary: Ms C complained the Council delayed completing an education, health and care needs assessment, failed to provide alternative education and delayed responding to her complaint. The Council failed to comply with the timescales for the needs assessment and delayed issuing a final education, health and care plan, delayed putting in place alternative education and delayed considering Ms C’s complaint. That meant Ms C’s daughter missed out on education and Ms C experienced frustration and uncertainty. An apology and payment to Ms C is satisfactory remedy.

The complaint

1. The complainant, Ms C, complained the Council:
• delayed completing an education, health and care needs assessment (EHC needs assessment);
• failed to provide alternative education for her daughter; and
• delayed considering her complaint.
2. Ms C says the Council’s failures have had a significant impact on her and her daughter’s mental health and means her daughter has missed out on education.

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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 an injustice, 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. As part of the investigation, I have:
• considered the complaint and Ms C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Ms C and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The statutory guidance

8. A child or young person with special educational needs (SEN) may have an 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 Council can do this.
9. The Special Educational Needs and Disability Code of Practice is statutory guidance (the code of practice). It 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:
• Where a 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.
• 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

10. 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 provision.
11. 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. In ‘Out of school, out of sight?’ published July 2022 we recommended councils:
• consider the individual circumstances of each case and be aware a council may need to act whatever the reason for absence, (except for minor issues 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.

The Council’s policy on supporting pupils with medical conditions (the policy)

12. Where children cannot attend school due to health needs the Council will work with providers, health services and other relevant agencies to assess the child's needs and provide timely and suitable provision to support continued access to education.
13. There are many circumstances where children with medical conditions continue to receive a suitable education without the Council intervening as the school continues to meet its responsibilities. This is relevant where:
• the child can attend school with support;
• the school has made arrangements to deliver suitable education outside of school;
• the arrangements have been made for the child to be educated in an on-site hospital school.
14. In those circumstances the Council would not be involved unless it had reason to believe the education provided by the school would not be suitable in content or would not be full-time.
15. The policy makes clear the Council’s responsibilities apply to all children and young people living in the Council’s area regardless of whether they are on the roll of a school.
16. The Council has the following alternative provision arrangements in place for children who cannot attend school due to a medical condition:
• outreach provision aimed at supporting students to reintegrate back into their usual school provision;
• tuition services to support children and young people in the community with medical or mental health conditions;
• hospital school provision.
17. The Council should be ready to take responsibility for any child whose illness will prevent them attending school for 15 or more school days where suitable education is not otherwise being arranged.
18. The Council will endeavour to arrange provision as soon as it is clear absence will last for more than 15 days. It will endeavour to do this by the sixth day of absence.

The Council’s complaints procedure

19. The Council’s complaint process says it aims to acknowledge stage one complaints within five working days and provide a full written response within 10 working days. It aims to acknowledge stage two complaints within five working days and provide a full written response within 20 working days. It says it will let the complainant know when to expect a response if there is a delay in either stage one or two.

What happened

20. Ms C’s daughter has SEN and was attending a mainstream school until October 2023. At that point Ms C’s daughter stopped attending her allocated school due to anxiety, although she remained on the roll of the school.
21. On 11 December 2023 Ms C applied for an EHC needs assessment for her daughter.
22. In January 2024 the Council put in place outreach provision to support Ms C’s daughter’s reintegration back into school. That lasted for six weeks and ended on 7 February. The Council noted reintegration had not been successful and Ms C’s daughter felt unable to return to her allocated school. The school made online learning available to Ms C’s daughter.
23. On 12 February 2024 the Council agreed to carry out an EHC needs assessment.
24. The Council put in place further outreach provision on 1 May. It also made a referral for tutoring for Ms C’s daughter.
25. Ms C put in a complaint on 14 May. The Council responded to that complaint on 14 June.
26. Ms C put in a stage two complaint on 20 June. The Council responded to that on 22 July.
27. Ms C began funding two hours education for her daughter in Maths and English from July 2024. Ms C added in an extra hour for Maths in September 2024.
28. In September 2024 the school told the Council tutoring had not begun. Ms C also chased the Council about that on 1 October when she asked for an update on the EHC assessment process. The Council explained it was waiting for the educational psychologist’s report.
29. On 21 October the Council wrote Ms C to explain its panel had considered the EHC needs assessment and did not consider her daughter needed an EHC Plan. Ms C challenged that decision and it became clear the panel had not had access to all her daughter’s paperwork. The panel reconsidered the case on 25 October and agreed to issue an EHC Plan.
30. On 27 October the Council told Ms C it would look for a school placement for her daughter to begin her post-16 studies from September 2025. The Council asked Ms C to consider the options for a placement for the remainder of the 2024/25 academic year. In response Ms C said her daughter would prefer home tuition until the end of the school year in July 2025. Following that the Council agreed education other than at school for Ms C’s daughter until July 2025. That was for a maximum of 15 hours per week.
31. On 14 November 2024 the Council issued a draft EHC Plan.
32. On 14 November the Council agreed to refund Ms C for the amount she had paid for tutoring for her daughter from July 2024 and to continue that until tuition was in place.
33. The Council began providing tuition to Ms C’s daughter from 13 December 2024. That was initially for 15 hours per week, increasing to 17 hours per week in February 2025.
34. The Council has begun consulting schools for Ms C’s daughter to attend from September 2025. The Council issued a final EHC Plan on 1 April 2025.

Analysis

35. Ms C says the Council delayed completing an EHC needs assessment. As I set out in paragraph 9, the code of practice is clear on the timescales the Council must adhere to when completing an EHC needs assessment. The Council did not meet the initial six week timescale for deciding whether to begin an EHC needs assessment and that is fault. There was also considerable delay completing the EHC needs assessment and issuing a draft EHC Plan. That should all have been completed by 29 April 2024. However, the Council did not issue a draft EHC Plan until 14 November 2024. I am satisfied that delay was largely due to the delay obtaining advice from an educational psychologist. There was also some delay though in the Council agreeing to issue an EHC Plan as its panel did not receive the information required at the first meeting. The Council then delayed issuing the final EHC Plan until 1 April 2025
36. The Council has told us it has taken steps to resolve the issues caused by the national shortage of educational psychologists and to reduce waiting times for EHC Plans. It has an action plan in place which includes reviewing ongoing recruitment and structure of its educational psychology service. It also says schools can apply for top up funding without the need for an EHC Plan to ensure any delay issuing a plan does not delay the appropriate support being put in place for a child. I welcome the steps the Council has taken and therefore do not make any recommendation for a procedural remedy.
37. The delay completing the EHC needs assessment due to the delay receiving the educational psychologist’s report is, nevertheless, a service failure. I am also concerned to note that although the Council should have issued a final EHC Plan by 29 April 2024 it did not issue the final EHC Plan until 1 April 2025. The delays in this case have caused Ms C significant frustration and uncertainty and have delayed her appeal rights.
38. I consider a suitable remedy for the delay caused by educational psychologist delay would be for the Council to pay Ms C £100 per month from when the draft EHC Plan should have been issued up until the date the Council issued the final EHC Plan in April 2025. That is a delay of 11 months and I therefore recommended a payment of £1,100. I further recommended the Council pay Ms C an additional £300 to reflect the delay issuing a final EHC Plan and the frustration, uncertainty and delayed appeal rights that caused. The Council has agreed to my recommendations.
39. Ms C says the Council failed to put in place alternative education when it became clear her daughter could not return to her allocated school. Ms C says she asked the Council to put in place alternative provision in December 2023 and it did not do that until December 2024. Ms C says as a result her daughter missed out on a significant amount of education as Ms C could only fund two hours tuition per week for part of the period.
40. The Council’s policy on supporting pupils who have medical needs refers to the options the Council will consider when a child is struggling to attend school. That includes an outreach programme with the aim of reintegrating the child into the allocated school. I do not criticise the Council for pursuing that option in the first instance. I am satisfied though by February 2024 the Council knew the outreach programme had failed to reintegrate Ms C’s daughter into school and that Ms C’s daughter was not receiving education. As the Council has a section 19 duty to ensure a child receives education I would have expected it to consider at that point whether alternative provision was required. Failure to do that is fault.
41. I am also concerned to note although the Council told Ms C following her complaint in May 2024 it was pursuing alternative provision for her daughter there is no evidence the Council put any provision into place until December 2024. That is also fault.
42. I now have to consider what injustice Ms C and her daughter have experienced as a result of that fault. The evidence I have seen satisfies me although Ms C’s daughter was not attending her allocated school the school was providing her with some resources online to enable her to undertake some education. I appreciate this was not equivalent to online tuition as Ms C’s daughter had to access that independently. I am also satisfied Ms C put in place two hours education for her daughter at her own expense from July 2024, increasing to three hours per week in September 2024. I also note the Council refunded the cost Ms C incurred in putting that tuition in place. Taking that into account I consider a suitable remedy would be for the Council to pay Ms C £1,200 per term for the limited education Ms C’s daughter received between February 2024 and December 2024. That equates to around 2.5 terms which is a total financial remedy of £3,000. The Council has agreed to my recommendation.
43. Ms C says the Council delayed considering her complaint. The Council’s complaints procedure says it will respond to stage one complaints within 10 working days. The Council accepts it failed to meet that in this case. Failure to comply with the complaint timescale is fault. There was also a slight delay in responding to the stage two complaint, which is also fault. I consider an apology satisfactory remedy for the delays.

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Action

44. Within one month of my decision the Council should:
• apologise to Ms C for the uncertainty and frustration she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet; and
• pay Ms C £4,400.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman