Summary: We upheld Ms X’s complaint about delays issuing Y’s Education, Health and Care Plan. This caused avoidable frustration, uncertainty and a delay in appeal rights. We also upheld Ms X complaint about poor communication and complaint handling which caused avoidable frustration. We found the Council acted in line with the law and relevant guidance by putting in place a reintegration plan and tailored support for Y as well as part-time alternative educational provision. So we did not uphold the complaint about a failure to provide full-time educational provision. The Council will apologise and make payments to Ms X.

The complaint

1. Ms X complained the Council:
1. Delayed seeking advice of an Educational Psychologist (EP)
2. Delayed issuing her child Y’s final Education Health and Care Plan (EHC Plan)
3. Did not update or communicate with her adequately and delayed responding to her complaints
4. Did not provide suitable full-time education from September 2023 to January 2025.
5. Failed to provide a Children and Family worker or award a direct payment at an appropriate rate, meaning she could not recruit a personal assistant.
6. Failed to seek speech and language and occupational therapy advice
2. Ms X said this caused her avoidable distress, a loss of earnings and a loss of educational provision for Y

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The Ombudsman’s role and powers

3. We make findings based on the balance of probabilities. This means that we look at the available and relevant evidence and decide what was more likely to have happened.
4. We cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. We cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. 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)
8. 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)
9. 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)
10. 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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What I have and have not investigated

11. I have investigated complaints (a) to (d). I did not investigate complaints (e) to (f) because Ms X did not complain to the Council about these matters. It is reasonable for the Council to first have an opportunity to investigate and respond. It is open for Ms X to complain to us again about these points if she is dissatisfied with the Council’s response.
12. The period of my investigation is September 2023 to January 2025. Matters after January 2025 are not in our remit because Y is not attending School A due to a dispute about its suitability as an educational placement. This means we have no power to investigate the complaint about a loss of special educational provision or alternative educational provision because of the legal case summarised in paragraphs 19 to 21.

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How I considered this complaint

13. I considered evidence provided by the Council as well as relevant law, policy and guidance. I discussed the complaint with Ms X
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making this final decision.

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What I found

Relevant law and guidance

15. Our Principles of Good Administrative Practice set out our expectations of councils. We expect them to:
• Be citizen focused. This means keeping to commitments including any published service standards and dealing with people helpfully, promptly and sensitively.
• Put things right. This means operating an effective complaints procedure, which includes offering a fair and appropriate remedy when a complaint is upheld.
16. 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.
17. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.
18. We 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. 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;
• 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.
• retain oversight and control to ensure their duties are properly fulfilled if arranging for schools or other bodies to carry out functions on their behalf
19. 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, including Section F (special educational provision) and I (educational placement). 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. There is a right of appeal to the Tribunal against a council’s decision to name a particular placement in Section I.

20. The courts have established that if someone has or had a right of appeal to the Tribunal and we consider it reasonable for them to have used that right, 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)
21. 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.
22. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
23. 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 SEND Regulations 2014. It says the following:
1. 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.
2. 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.
3. 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);
24. As part of the assessment, councils must gather advice from relevant professionals, including an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice. (SEND Regulations 2014, Regulation 6(1)).
25. The Council told us in August 2024, during another investigation into a complaint about similar issues that:
• It was recruiting 52 EHC casework staff by the end of 2024
• It had received a further £200 000 to ensure that its educational psychology capacity is able to continue to deliver advice in a timely manner.
• The Complaints and Appeals Team expects to have in post an Education Inclusion Complaints Manager and a Complaints Officer specifically to deal with SEND complaints by the end of November 2024.
• It is investing in a digital portal which will allow schools and parent carers to access their EHC Plans in real time.

What happened

2023

26. Y is autistic. He was in a mainstream primary school until October 2023 where he received a temporary exclusion due to aggression and was on a phased return. Records from Ms X indicate Y told her he did not want to return to the school and Ms X said Y was struggling with anxiety about the transition from infant to primary school. Another mainstream primary school (School A) offered Y a place from October 2023.
27. The Council’s records show ongoing involvement from specialist teachers in the Council’s Inclusion and Education Support Team (IEST) in the autumn term of 2023. This included observation and individual sessions with Y in both schools, setting a transition plan, attempting to deliver that plan using therapeutic approaches, reviewing the plan and attending meetings with School A. Despite this support from the IEST and a programme of visits scheduled, Y did not manage to attend any full lessons in School A although he had a little contact with peers and went into a Maths class.
28. Ms X described Y as having an autistic burnout in a meeting with School A at the start of November and said he could not cope with the sensory demands of mainstream education.
29. Ms X requested an EHC needs assessment on 28 November. The Council agreed to carry one out on 22 December. Its casework system recorded a referral for an EP advice the same day with a due date of 1 February 2024.
30. Minutes of a meeting with School A at the start of December 2023 set out an agreed transition plan for Y to return. The aim was to encourage friendship with classmates via gaming and then meet in person at school to play in January. The plan did not work because of a lack of pupils identified as willing to take part in playing on-line games.

2024

31. School A’s records noted Y visited the playground and attended a Maths lesson briefly in January 2024. And School A had sent him videos and he sent a video back.
32. Further visits to School A were planned for February and took place. There was a review with the IEST teacher, School A and Ms X in the middle of March. There were concerns about everybody’s safety (because of Y’s aggressive behaviour) and the plan was to try and build a relationship with a trusting school adult on-line. School A was to explore whether there was a personalised space for Y in school which would ease the transition. In April there was a session on-line with Y and a member of staff. The session did not go well.
33. Ms X made the complaint in paragraph 1(a) to the Council at the start of March 2024. The Council did not respond within its usual response time of 20 working days. Y’s final EHC Plan was due no later than 16 April 2024 in order to meet the statutory deadline in paragraph 21(c). This deadline had also passed.
34. Ms X made a stage two complaint in the last week of April. The Council replied at the end of April at stage one, apologising for the delay in Y’s EHC needs assessment and explaining this was due to a shortage of EPs.
35. The Council told us that due to the lack of EP’s, its practice was to get schools to commission EP advice and to reimburse them the cost after checking the report was appropriate to form part of an EHC needs assessment. The Council asked School A to obtain the EP advice.
36. There was a further meeting between the IEST teacher, School A and Ms X at the start of May. It was noted Y could not attend School A which had funded on-line gaming mentoring and horse-based therapeutic and educational sessions. Y was coping well with both provisions as demands on him were low. Future plans for engagement with school had been paused with the focus on sessions Y could cope with. The agreed actions were:
• School A to fund a weekly horse and gaming session.
• Class teacher to continue sending one or two pieces of learning for Ms X to work on with Y should he feel able to engage with it.
• School to send copy of ‘the Colour Monster’ in the post for Y and send links to the story online.
• Council to be pressed for EP advice.
• School A to send Ms X an emotional regulation advice sheet.
37. School A sent the Council a report on 20 May. This said Y could not enter school and the family was in crisis. It noted there was a safety risk to Y being in school. No further visits to school were planned due to Y’s responses to the school environment which resulted in harm to others.
38. The EP’s report was available on 18 June. The Council’s panel checked the EP advice on 18 July and decided to issue Y with an EHC Plan on 24 July. The Council notified Ms X of the decision by email.
39. Ms X wrote to the Council on 10 September 2024, asking it to finalise Y’s EHC Plan or she would issue judicial review proceedings. The Council treated her letter as a stage two complaint and responded a week later. It apologised for the delay in the EHC Plan process and said the draft plan had been written and the case manager would be in touch to share it with her in the next few days. The Council issued a draft EHC Plan on 18 September.
40. Ms X sent her parental comments on the draft Plan which included that Y had autistic burnout from July 2023 to March 2024 which was not recognised. (Autistic burnout is not recognised as a separate diagnosis by the NHS. A national charity describes it as “a syndrome resulting from chronic life stress and a mismatch of expectations and abilities without adequate support. It results in long-term exhaustion, loss of function and reduced tolerance to stimulus.”)
41. Ms X complained to us in October 2024.

Events since the complaint to us

42. An email update from the SEND team at the end of October said Y could barely leave the house due to extreme anxiety and dysregulation that showed as violence towards others. School A was funding online gaming. Equine sessions had been unsuccessful. The Council’s position was Y needed a placement in a special school.
43. The Council issued another draft EHC Plan on 4 November. It consulted with 10 schools between November and January 2025. The responses were negative either because of capacity or because Y’s needs to not fit the type of special school.
44. The Council issued the final EHC Plan on 2 January 2025 naming School A as Y’s educational placement.

Comments from the Council

45. The Council told us due to staff sickness, workers leaving their positions with the Council and annual leave, Y had four different case workers and handovers were not completed.

Was there fault?

The Council delayed seeking advice of an Educational Psychologist (EP) and delayed issuing Y’s final EHC Plan

46. We uphold this complaint. There was fault, including service failure, because the final EHC Plan should have been issued no later than 16 April 2024 to be within 20 weeks of the parental request and wasn’t issued until the start of January 2025. The delay of eight and a half months was fault.
47. Within this delay of eight and a half months, there was drift and inaction on Y’s case as follows:
• Non-compliance with the six-week timescale for provision of the EP advice. This should have been available by the start of February 2024 rather than the middle of June.
• Administrative delays including quality assuring the EP advice which took four weeks in June and July 2024.
• A further period of delay in issuing two draft Plans took (between July and November.)
• School consultations did not start until the second draft Plan was issued in November.

The Council did not update or communicate adequately and delayed responding to her complaints

48. We uphold this complaint. There was delay at stage one with Ms X having to chase the Council and attempt to escalate to stage two. Communication by the SEND team was also poor and was hampered by staff sickness and multiple changes of case worker. The Council’s complaint responses also failed to address Ms X’s complaint about a lack of educational provision for Y. This was not in line with our expected standards as I have set out in paragraph 14.

The Council did not provide suitable full-time education from September 2023 to January 2025

49. There is no fault by the Council. The evidence indicates Y was in an extended period of autistic burnout and was not able to leave the house due to anxiety levels. He was not offered full-time alternative educational provision, but on balance, he would not have coped with this anyway even if this had been considered an appropriate option for him.
50. Y had continuing structured support from the Council’s IEST and the records indicate there was a plan to reintegrate him with a series of small supportive steps that were reviewed and changed as appropriate. I recognise Y had only a small amount of alternative educational provision (on-line gaming mentoring and a short period of equine therapy), but this was in line with what he could cope with and so met the requirements of Section 19 of the Education Act 1996 which allows for part-time provision based on a child’s needs.

Did the fault cause injustice requiring a remedy?

51. The delay in obtaining an EP report and in issuing Y’s final EHC Plan caused avoidable frustration, uncertainty and a delay in appeal rights. Poor communication and complaint handling also caused avoidable frustration.
52. The delay did not cause Y any loss of special educational provision though. Even if the Plan had been issued on time, on balance, as Y was in an extended period of autistic burn-out, he would not have been able to attend School A to receive any of the special educational provision on the Plan. The outcome for Y in terms of educational provision would have been no different, even if the Council had completed the EHC plan on time.

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Agreed Action

53. Within one month of my final decision, the Council will issue:
1. An apology. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. A total payment of £800 to Ms X. This is made up of:
1. £500 to reflect the five-month delay in obtaining the EP advice (£100 per month in line with our guidance on remedies.
2. £150 to reflect the avoidable frustration caused by the six-month delay in preparing and issuing the draft and final Plans and in poor communication.
3. £150 to reflect the time and trouble caused by poor complaint handling.
54. I am not making any recommendations for improvements to the Council’s services because the Council has already taken action to address the fault identified and the agreed action will take time to be effective.
55. The Council should provide us with evidence it has complied with the above actions in paragraph 52.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman