Summary: We found fault on Mrs Y’s complaint against the Council through a service failure. It failed to issue the final Education, Health and Care plan for her daughter, Z, within statutory timescales. The Council issued it 40 weeks late. The delay caused Mrs Y avoidable injustice as she suffered uncertainty and frustration. The agreed action remedies the injustice caused.

The complaint

1. Mrs Y complains about the Council failing to ensure her daughter, Z, received:
1. the full-time education set out in her Education, Health and Care (EHC) plan as the named school could not meet her needs; and
2. the provision set out in her plan.
2. As a result, she receives part time education which means she has lost education and provision set out in her plan. It caused a great deal of stress because she cannot leave her alone at home because of her deteriorating mental health.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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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What I have and have not investigated

7. Usually, we would not investigate the Council’s actions that took place before October 2023. This was because Mrs Y complained to us in October 2024 and the law says we cannot investigate late complaints. Late complaints are when someone takes more than 12 months to complain to us about something a council has done.
8. I exercised discretion to investigate Mrs Y’s complaint from May 2023. This was because this was the date the Council received a request for an EHC needs assessment which meant it should have issued the final EHC plan in October. It did not do so, and the delay, therefore, was ongoing.
9. I did not investigate any of the Council’s actions which took place after September 2024. This was because this was the date she received the Council’s response under stage 2 of its complaints procedure. The law states the Council must have the chance to respond to any complaint she makes which means any new complaint after that date would have to go through the Council’s complaints procedure before we could look at whether it was an issue we could investigate. Any reference to events after this date were to help put the complaint and Council’s actions into context.

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How I considered this complaint

10. I considered evidence provided by Mrs Y, the notes I made of our telephone conversation, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of the draft decision to Mrs Y and the Council. I considered the Council’s response.

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What I found

Relevant law and guidance

EHC Plan process

11. 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 First-tier Tribunal or a council can do this. 

12. Statutory guidance, ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014 (the Regulations) which say 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 the 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 issue an EHC plan, the whole process from the point when an assessment was requested, until the final EHC plan was issued, must take no more than 20 weeks (unless certain exceptional circumstances apply).

13. The Code states there are ‘exceptional circumstances’ where it may not be reasonable to expect councils to comply with the 20 week time limit. This would include: appointments missed by the child; the child is absent from the area for a period of at least 4 weeks; exceptional personal circumstances affecting the child or parents; the closure of the educational institution for at least four weeks which may delay the submission of information from the school.

Alternative Provision

14. 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.
15. 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)
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude, and to any special educational needs he or she may have. (Education Act 1996, section 19(6))
17. The courts have considered the circumstances where the section 19 duty applies. Case law established 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)

What happened

18. In May 2023, Mrs Y’s daughter, Z, was out of school because of her behaviour. She attended an Alternative Provision College (APC) while remaining on the roll of her school. There was a meeting after a few weeks of attendance which included Mrs Y. The record of the meeting noted Z’s timetable was a little mixed because of ongoing exams at the APC. She was also on a waiting list for a referral to the Child and Adolescent Mental Health Service. All present agreed the placement would continue.
19. The school made an EHC needs assessment referral to the Council the same month. Mrs Z was unhappy with the time it took for the Council to issue the final EHC plan (July 2024) from the date it received the referral.
20. In June, there was another meeting. Z was doing well at the APC although was suspended for three days because of her behaviour. The records show she could not do a full time timetable because of her mental health needs. There was also a risk of Z going into care.
21. Z remained at the APC until, during the EHC plan process, Mrs Y asked for a maintained mainstream school setting. The Council consulted several schools, but all set out concerns about having Z. The Council then agreed to arrange provision and a placement through a 14-16 Special Education Needs and Disability provision at a College. In addition, it used an Alternative Provision provider (APP) for tutoring. The Council was satisfied the College, and the APP provision, were meeting Z’s needs.
22. Z’s previous school agreed to keep her on the roll but, she would access provision through the College and an APP. This was because the Council had to ensure she had an on roll school setting. Z expressed an interest in vocational subjects, so it agreed to seek a package of alternative provision, at the College, which offered more of a vocational curriculum along with tuition through an approved alternative provider. The College could not offer full time provision as it was a post-16 provider which meant the maximum number of hours she could attend was 18. In addition, she could not go to the school because of her extremely challenging and dysregulated behaviour.
23. The Council considered the reduced time timetable complied with provisions of the Education Act 1996 which stated a council has discretion to provide education on a part time basis as it considered was in the child’s best interests. It also confirmed alternative provision was made for Z in the form of the College placement. It considered this offered her an individual, flexible timetable which was better able to meet her needs and allow her to access education. It considered the current provision was in line with Section F of her EHC plan.
24. Mrs Y complained Z received only 10.5 hours of education a week at most at the College. She was now in Year 10. She wanted Z to receive full time education at school. She also said the Council told her there was no point appealing the school named in the final EHC plan it issued because no other school would accept Z. The Council had no evidence of telling her this.
25. Under the first stage of its complaints procedure in September 2024, the Council:

• apologised for the delay with the EHC needs assessment. This was because of a lack of capacity in its Educational Psychology Service. There was a national shortage of educational psychologists. It explained it now employed external educational psychologists and changed ways of working;
• explained there were also delays due to consultations with other schools which meant it had to find an alternative placement for Z. The College could not interview for a placement until recently because of staff absences;
• also explained an alternative provision search was done to put in place tutoring to help Z build up her hours accessing education; and
• accepted there was a lack of maintained specialist options for girls with social, emotional and mental health needs in West Sussex and the independent sector catered mainly for boys.

26. At the annual review held in December 2024, the records showed the College confirmed Z was still on the same timetable as when she started. This was three days a week although it was looking at increasing her time there in the new year. She was also continuing to receive 1:1 sessions with an alternative provider tutor.

My findings

27. I found the following on this complaint:
1. There was a failure to comply with the statutory timescales for issuing a final EHC plan. The Council had 20 weeks from receipt of the request for an EHC assessment to go on and issue the EHC plan. This meant the Council had until 13 October 2023. It did not issue it until 19 July 2024, 40 weeks later.
2. The explanation for the delay was due to the shortage of educational psychologists, consultation with schools, searching for a tutor, as well as a lack of specific options for Z in her position. None of these reasons fall within the definition of exceptional circumstances as set out in the Code.
3. The delay caused injustice. This was because the delay due to the shortage of educational psychologists caused uncertainty and frustration.
4. I found no fault on Mrs Y’s complaint about the Council failing to provide Z with full-time education and the provision set out in her EHC plan. This was because the Council understood Z could not attend school full-time. Instead, it decided it was in her best interests to attend the College, with APP support, on a part time basis. The annual review held in December 2024 found she was settling in at the College, which was providing her with support, and there was room to increase her subjects there too.
5. The Council exercised its discretion to make provision for Z which it decided, considering all her circumstances, was in her best interests.

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Action

28. I considered our guidance on remedies. I also took account of the provision the Council put in place during this period of delay, the provision put in place following the issuing of the final EHC plan for the start of the new academic year, and the apology it already gave for the delay.
29. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Pay Mrs Y £1,000 (10 months x £100) for the delay caused by the shortage of educational psychologists.
2. Produce an action plan showing how it will meet the statutory timescales for needs assessments and issuing EHC plans.
30. The Council should provide us with evidence it has complied with the above actions.

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Decision

31. I found fault on Mrs Y’s complaint against the Council. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman