Summary: Mrs X complained the Council delayed putting alternative provision in place for her child, Y and also delayed completing Y’s Education, Health and Care (EHC) needs assessment. The Council delayed considering whether to put alternative provision in place for Y which on balance meant they lost out on tuition between April and October 2024. It also delayed deciding whether to issue Y with an EHC Plan within the statutory timescales which subsequently meant a delay in issuing the final EHC Plan. The Council agreed to make payments to Mrs X to acknowledge the injustice caused.

The complaint

1. Mrs X complained the Council delayed putting alternative provision in place for her child, Y when they stopped attending school in early 2024, and when it did the provision was not suitable. Mrs X says Y’s education has been impacted which has caused distress and uncertainty.
2. Mrs X also complained about delays in Y’s Education, Health and Care (EHC) needs assessment caused mainly by delays obtaining Educational Psychologist advice. This delayed Mrs X’s right of appeal to the SEND tribunal.

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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 evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs 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

Section 19 Duty

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. [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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
10. Councils also have some flexibility with regard to the time taken to set up alternative provision. However, they must make provision from the sixth day in exclusion cases, and they should do so in medical cases where it is clear the absence is for more than 15 school days.
11. 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).
12. In practice, we would expect to see Councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If – having considered all relevant evidence – a Council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parents.

EHC Plans

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’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.
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 assessments and producing EHC Plans. The Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;

• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• Once the Council agrees to carry out the EHC needs assessment it should issue its decision whether to issue a plan within 10 weeks and a finalised EHC Plan within 14 weeks.

15. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice

SEND tribunal

16. 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.
17. There is a right of appeal to the Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.
18. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
19. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

What happened

20. Mrs X has a child, Y who in 2023 attended a mainstream secondary school. Y has identified special education needs (SEN) and struggles with social and emotional interaction and regulation. Y began struggling with school when they began secondary education. Mrs X said Y’s anxiety increased and they started to refuse to go to school towards the end of 2023 and bar a couple of lessons stopped completely at the start of 2024.
21. Records show Mrs X contacted the Council at the end of February 2024 and told it of Y’s school avoidance which she said was down to anxiety. She asked the Council what support it could provide. Y’s GP submitted a referral.
22. Mrs X asked the Council in May 2024 to carry out an EHC needs assessment for Y.
23. The Council declined to put alternative provision in place for Y in June 2024 due to a lack of medical evidence. Mrs X sent the Council a letter from a Consultant Paediatrician and it agreed to consider Y’s case again.
24. In June 2024 the Council wrote to Mrs X declining to carry out an EHC needs assessment saying Y should work with the Education Key Worker Team to reintegrate them back into school.
25. At the end of June 2024 the Council’s alternative provision panel agreed to put some tuition in place for Y in the short term. This however did not begin until the next academic year.
26. In July 2024 the Council decided based on the further evidence it received that it would now carry out an EHC needs assessment for Y. In line with statutory timescales this meant the Council should have decided whether to issue Y with an EHC Plan by mid-September 2024. That being the case the Council should then have issued Y’s final EHC Plan by 17 October 2024.
27. As part of the EHC needs assessment the Council requested advice from an Educational Psychologist (EP) in July 2024. The EP provided advice at the start of November 2024 which was a delay of 10 weeks. The Council sent its decision to issue Y with an EHC Plan on the same day and issued a draft EHC Plan at the end of November 2024.
28. Mrs X complained to the Council in July 2024 about the handling of Y’s education. The Council responded in August 2024 and apologised that tuition did not begin at the end of the previous academic year. It said it would arrange for the tuition to being in September 2024.
29. Mrs X said Y began receiving six hours a week tuition from October 2024. Mrs X asked the Council to increase Y’s hours. Mrs X asked whether Y could attend a specialist placement where other children receiving alternative provision attended which the Council declined. The Council’s alternative provision panel declined to increase Y’s tuition on the basis that the six hours should be used to help Y reintegrate back to school.
30. Mrs X made another complaint to the Council in October 2024 about the delays completing Y’s EHC needs assessment. The Council responded and apologised for the delays which it blamed on an unprecedented number of requests for needs assessments over the last 18 months. In addition, it said there was a national shortage of Educational Psychologists (EPs) to meet the increased demand. The Council outlined the steps it was taking to recruit more staff and EPs to reduce the delays. With regards to Y’s alternative provision the Council said panel had recently declined to provide Y with further support as in its view Y’s needs were not a barrier to them attending school. It was unable to offer a place at a specialist school.
31. Records show Y’s hours were increased in December 2024 to a package that included 10 hours a week of tuition split between home and a community centre building, although Mrs X said the 10 hours never started. The Council said this could continue to Easter 2025 with a view to moving the external tuition back into school. Mrs X said this made Y anxious and they began refusing to attend the community centre during January 2025. Mrs X said this tuition stopped in January 2025 after the tutor left.
32. The Council issued Y’s final EHC Plan at the end of January 2025 which named Y’s current mainstream school. Mrs X appealed Y’s EHC Plan to the SEND tribunal the following day.
33. Mrs X remained unhappy and complained to us.

My findings

EHC needs assessment delays

34. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
35. After agreeing to carry out an EHC needs assessment for Y the Council should have made the decision whether to issue a Plan by mid-September 2024 and then subsequently issued the final Plan by 17 October 2024.
36. The EP report should have been available to the Council by mid-August 2024 in order for it to have met the statutory deadlines. The EP report was not complete until the start of November 2024 which was a delay of 10 weeks and fault. It caused a delay in the Council deciding whether to issue Y with an EHC Plan. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases.
37. However, the delay in obtaining EP advice was not the only reason for the delay in issuing Y’s final EHC Plan. With EP advice in hand the Council should have issued Y’s final Plan by the end of December 2024. It did not do so until 30 January 2025 which is a further delay of four weeks which is fault.
38. The faults above have caused Mrs X distress and delayed her right of appeal to the SEND tribunal which she used immediately upon receipt of the final Plan.

Y’s alternative provision

39. The Council was informed towards the end of February 2024 that Y was struggling to attend school and that Mrs X wanted alternative provision support. In line with relevant guidance the Council should have made a decision at the time (or within 15 days) about whether it had a Section 19 duty. It did not take Y’s case to panel until June and the decision to put provision in place for Y was not agreed until the start of July. All of this delay was fault. The Council has accepted it then further delayed putting provision in place until October 2024 when Y’s tuition started. On balance, without the delays the Council should have put Y’s alternative provision in place by at least April 2024 meaning they lost out on around 18 weeks of tuition.
40. Mrs X asked the Council to consider increasing Y’s tuition towards the end of 2024 and the Council declined on the basis that it was keen to reintegrate Y back into school. However, there is no evidence that there was a reintegration plan in place or consideration of whether Y’s school remained available and accessible at the time. So, it was unlikely six hours was enough tuition for Y given there is no evidence of reintegration attempts at the time which is fault. However, Y’s increase to 10 hours of tuition in December 2024 did form part of a reintegration plan to try and get them back into a school environment. I note this started to break down in January 2025 so it leaves uncertainty around whether Y could have coped with more than six hours.
41. Mrs X has appealed Y’s EHC Plan to SEND tribunal. Y’s absence from school is linked to the matters at appeal so due to the restrictions on our jurisdiction as outlined in paragraphs 16-19 I have not considered Y’s alternative provision after January 2025.
42. The Council has explained following similar cases investigated by the Ombudsman the action it is taking to meet the demands in its SEND service and to reduce the backlog in the EHC needs assessment process. This includes ongoing recruitment of EPs and SEN case officers. It is also in the process of publishing a new Section 19 policy. I therefore have not recommended further service improvements. We continue to monitor the Council’s ongoing work to reduce the backlog through our casework.

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Agreed Action

43. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X and Y and Pay Mrs X £350 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in deciding whether to issue Y with an EHC Plan caused by the delay in obtaining advice from an Educational Psychologist, and the subsequent delay in issuing the final EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Pay Mrs X £1,000 to recognise Y’s loss of alternative provision between April and October 2024 caused by a delays in both its consideration of the Section 19 duty and arranging the alternative provision once agreed.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. I find fault causing injustice. The Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman