Summary: Mrs F complained the Council failed to adhere to the statutory timescales for the Education, Health and Care needs assessment process for her son (X), and it caused delay in arranging alternative provision when he could not attend his school. The Council’s delay to complete the statutory process is a service failure, but we did not find fault in how it handled X’s alternative provision up to November 2024. The Council will apologise and make a symbolic payment to acknowledge the distress its service failure has and continues to cause Mrs F and X.

The complaint

1. The complainant, Mrs F, complained the Council failed to:
• adhere to the statutory timescales for the Education, Health and Care (EHC) needs assessment process for her son; and
• provide X with an education he can access since September 2024 when he was unable to attend school.
2. Mrs F said, as a result, X had a loss of education and experienced distress. She also said she experienced distress and uncertainty and had cost for professional reports.

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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)

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What I have and have not investigated

6. I have investigated Mrs F’s complaint from May 2024 relating to the Council’s handling of her EHC needs assessment request and X’s alternative provision until November 2024. This was when it had provided its final complaint response, and some alternative provision had been put in place.
7. I have not investigated Mrs F’s concerns about events after November 2024 relating to the amount of alternative provision the Council put in place for X. This is because this was not part of her original complaint, and it has not had the opportunity to address these concerns through its complaints process.

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How I considered this complaint

8. I considered evidence provided by Mrs F and the Council as well as relevant law, policy and guidance.
9. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 found

Relevant law and guidance

Education, Health, and Care needs assessments

11. 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);
12. There is a right of appeal to the SEND Tribunal against a council’s:
• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment; and
• 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 in their EHC Plan.

Alternative provision

13. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
14. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ 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”.
15. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
17. 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)
18. The law does not define full-time education but 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. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
19. 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
20. 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.
21. 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

22. Mrs F has a son, X, who has special educational needs which impacts his ability to receive an education.
23. In May 2024 Mrs F asked the Council to complete an EHC needs assessment for X. The Council agreed to the request in June 2024.
24. An incident occurred involving X in his school in July 2024 which resulted in a suspension. In September 2024 X was put on a reduced timetable with his school due to anxiety and his special educational needs. He attempted to attend school but struggled to do so and was suspended due to behavioural issues.
25. Mrs F met with X’s school, but felt the relationship was broken down. She also shared a psychiatrist letter with the Council which said X could not attend school due to not being mentally well enough.
26. When X had been unable to attend school for 15 days, Mrs F’s advocate complained to the Council on her behalf. This was that the Council:
• was failing to adhere to the statutory timescales for the EHC needs assessment process as no educational psychologist had assessed X. It had been 13 weeks since it agreed to complete its assessment; and
• should put alternative provision in place for X, as he had now been out of school for 15 days due to his inability to access his education and his suspensions.
27. In response the Council accepted it had failed to adhere to the statutory timescales to complete X’s EHC needs assessment. It explained this was due to its challenges to recruit and retain the educational psychologist necessary to complete the process. It explained the steps it is taking to address the delays.
28. The Council also said X will continue to receive support as part of its ordinary offer during the delayed process. This included additional special educational needs support which it funds to schools when there are delays in the EHC needs assessment process for a child. It told Mrs F she should ask the school for support, and the school could ask the Council for advice and support regarding X’s needs.
29. A week later the school made a referral to the Council’s Education Access for X to receive alternative provision.
30. Four weeks later, the Council agreed to provide X with alternative provision, which started shortly after in November 2024.
31. Mrs F was not satisfied with the Council’s response and asked the Ombudsman to consider her complaint. This included her view the alternative provision which started in November 2024 was not enough.

Analysis and findings

The EHC needs assessment process

32. The Council has accepted it has failed to adhere to the statutory timescales to complete the EHC needs assessment process for X. This is due to its challenges in retaining and recruiting educational psychologists.
33. The Council’s failure to complete X’s EHC needs assessment is therefore a service failure. I am satisfied this delay has caused uncertainty and frustration to Mrs X and the family.
34. In line with our Guidance on Remedies, a symbolic payment is therefore appropriate. This is £100 per month from September 2024 when X’s EHC needs assessment should have been completed. This is an ongoing remedy for up to six months after the date of my decision until the Council has completed X’s needs assessment, and if appropriate issued his final EHC plan. If the Council has still not completed its assessment Mrs F can return to the Ombudsman with a new complaint.
35. The symbolic payment is not to remedy any loss of special educational needs support as X does not yet have an EHC plan.
36. The Council has an action plan in place to mitigate the impact and address the challenges. We have as part of previous investigation and recommendations found its action plan to be appropriate to address the challenges the Council is experiencing. I have therefore not made any further service improvement recommendations.
37. I also understand Mrs F has obtained professional reports to support her EHC needs assessment request for X. While the Council should have regard for such reports in the process, it is not required to reimburse the costs a parent may have had. This is unless it finds the reports are adequate and of the standard it would expect, and it decides it is not necessary to obtain its own reports as a result to finalise the process. It did not find this was appropriate in this case, and this is a decision it was entitled to make.

Alternative provision

38. I found the Council did not cause a delay in arranging alternative provision for X between September to early November 2024. In reaching my view I was conscious:
• X stopped attending school in early September 2024, and Mrs F shared a psychiatrist letter with the Council which said X could not attend school due to not being mentally well enough;
• Mrs F’s advocate told the Council it had a duty to provide alternative provision when X had been out of school for 15 days;
• The Council told Mrs F it had provided additional funding for X’s school due to the delays in the EHC needs assessment process, and she should approach the school in the first instance for alternative provision;
• X’s school made its referral to the Council in early October 2024, it then took the Council four weeks to meet with Mrs F, consider the information it had received, and reach its view X should be provided with alternative provision. This also included the one-week autumn half-term where X would not have received an education.
39. We normally expect alternative provision to be put in place within four weeks as we acknowledge it will take some time for a Council to reach a decision and to source the provision. I found X’s alternative provision therefore started around the time I would expect, and no significant delay was caused by the Council.

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Action

40. To remedy the injustice the Council caused to Mrs F and X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs F to acknowledge the injustice its service failure caused, and continues to cause, her and X; and

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. pay Mrs F a symbolic payment of £100 per month from September 2024 until it decides to either not issue an EHC plan or it finalises an EHC plan for X. This is to acknowledge the distress its delays have caused.
2. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I found the Council responsible for a service failure which has caused an injustice. I have made recommendations to acknowledge to impact this caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman