Summary: Miss X complained the Council delayed completing her child’s education, health and care (EHC) needs assessment and it failed to provide her child with a suitable education when she was unable to attend school. We found the Council at fault for delaying the needs assessment and issuing the final EHC Plan, failing to arrange alternative education and failing to communicate with Miss X effectively. The faults identified have caused a loss in education and avoidable distress over a significant period. The Council has agreed to our recommendations to remedy this injustice by providing an apology to the family and also payments for loss of education and avoidable distress.

The complaint

1. Miss X complains the Council:
• Delayed issuing her child’s education, health and care (EHC) Plan;
• It named a school on her child’s EHC Plan that she did not want; and
• Failed to provide her child’s school with funding for 3 days of extra provision that it had agreed.
2. Miss X says her child has not been able to access full time education for four years and is behind on her learning.

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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. 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)
5. The law says 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)
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. 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)
8. 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

9. I have used my discretion to investigate matters from June 2023.
10. I have not investigated Miss X’s complaint about her not being happy with the school named in Y’s EHC Plan. This is because the law says we cannot investigate a complaint when someone has a right of appeal to a tribunal about the same matter. The decision to name the school carries a right of appeal to the SEND Tribunal and they are best placed to deal with this matter.

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How I considered this complaint

11. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
12. Miss 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

Education, health and care 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’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 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. 
• 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

15. 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)
16. 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.
17. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
18. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

Alternative education

19. 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.
20. 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)
21. 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)
22. 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
23. 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.

24. 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

25. Miss X has a child, Y, who attends mainstream school. On 16 December 2022, the Council received a request for an assessment of Y’s Education, Health and Care (EHC) needs.
26. On 18 January 2023, the Council agreed to assess Y and on 8 March 2023 the Council agreed to issue an EHC Plan for Y.
27. In May 2023, the Council issued a draft EHC Plan for comments and sent consultations to three settings.
28. On 6 December 2023, the Council issued a final EHC Plan for Y. It named the school Y was already on roll at but not attending.
29. In February 2024, Miss X appealed Sections B, F and I to the SEND Tribunal.
30. Miss X complained to the Council about the delay in finalising Y’s EHC Plan, failing to provide the extra funding to the school and not providing Y with a suitable education.
31. The Council upheld the complaints and apologised to Miss X. It said it would resolve the issue of the funding as soon as possible.
32. Miss X did not feel the Council’s response addressed the impact of the lack of communication, lack of funding and the delays in finalising Y’s EHC Plan had on her and also to Y’s education and wellbeing. She did not feel an apology was an adequate reflection of the injustice caused. Miss X requested her complaint be escalated to Stage 2 of the Council’s complaints process.
33. The Council upheld Miss X’s complaints at Stage 2 also. It acknowledged communication from the Council had been inconsistent, the EHC Plan was delayed and that there were significant delays in processing the funding request. The Council said it could not comment on Y’s non-attendance at school because educational provision was being considered by the SEND Tribunal.
34. Miss X brought her complaint to the Ombudsman.

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Analysis

Delay in finalising Y’s EHC Plan

35. The Council received a request for Y’s EHC needs to be assessed on 16 December 2022. The Council had 20 weeks to complete the whole process. In this case it was delayed by 7 months. The Council should have issued Y’s final EHC Plan by 5 May 2023 but it did not do so until 6 December 2023. The Council’s failure to complete the EHC assessment in accordance with the statutory timeframes is fault.
36. The Council upheld Miss X’s complaint about the delay and said it was due to staffing issues and Y’s allocated officer being on long term sick. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance.
37. The delay in completing the assessment and issuing the final EHC Plan caused Miss X frustration and uncertainty over a significant period. It also delayed her right to appeal to the SEND Tribunal. I consider the Council should make a symbolic payment to recognise the frustration and distress Miss X has experienced.

Funding for alternative provision

38. Miss X complains the Council did not provide the school with funding for three days of provision per week. The Council confirms it received a costed plan from the school on what it would use the funding for. It has also confirmed in its complaint responses there was a delay in processing the funding request. The Council has not provided me with any evidence on the outcome of this request or when it was processed. Instead, it has said that once it was advised by Miss X’s Stage 1 complaint that funding was required, the appeal was underway at the Tribunal and an EOTAS package was being put together. This does not excuse the Council’s duty to arrange suitable education when it knew Y could not access the education arranged by the school. The Council still had a duty to provide Y with a suitable education regardless of the appeal or what the Council was proposing to do in the future.
39. I have seen evidence the Council was aware from as early as June 2023 that Y was not attending school full time. By November 2023 the evidence shows the Council was advised that Y had stopped attending school and that despite the school’s best efforts, it was unable to provide Y with an education, without extra funding. The school developed a costed plan for funding for three days of alternative provision and the Council has not provided me or Miss X with any evidence it made a decision on this request or provided the funding. As late as October 2024 Miss X was still chasing the Council for an outcome of this request.
40. Therefore, I find the Council at fault for failing to consider its duty to make alternative arrangements for Y’s education from June 2023. I have not seen any evidence from the Council it made any checks to satisfy itself Y was being provided with a suitable education from June 2023. The evidence shows there was a loss of education in June 2023 and by October/November 2023, Y had completely stopped attending school. This loss of provision is an injustice and warrants a remedy. I have made a recommendation for the injustice caused by the Council’s failure to ensure Y received a suitable education when she was unable to attend school.
41. We are prohibited from making findings on matters on or linked to the Tribunal appeal from when Miss X’s appeal right arose, 6 December 2023. Therefore, my recommendations for loss of provision cover the period June 2023 to 6 December 2023. This equates to approximately a term and a half. When calculating the remedy, I have taken into consideration the limited provision Y received during this period and also Y’s individual circumstances.
42. Additionally, the delay in processing the request for funding and the Council’s failure to keep records and communicate its decision to Miss X is fault. It appears the Council received the request in November 2023 and it was still outstanding in October 2024. This was a significant period of uncertainty for Miss X and it caused frustration to the point where she felt she needed to complain to get a response. However, complaining to the Council did not result in a clear response to this and it was unable to provide me with a clear outcome also. I consider this injustice caused by delay from November 2023 to October 2024 warrants an appropriate remedy.

Communication with Miss X

43. I have seen evidence of communication from Miss X to the Council not being responded to. This communication was around consultations with schools, chasing updates on Y’s education and requesting updates on the funding for alternative provision.
44. I have seen emails from Miss X to the school in January 2024 where she requests the school’s help because she is not receiving any information from the Council regarding her child’s education. From the email it is evident Miss X is confused about what was happening, frustrated, she felt unsupported by the Council and she found the situation stressful because Y was at home with her all the time and there was no sign of any support forthcoming from the Council. This demonstrates the injustice to Miss X was significant. This injustice warrants an appropriate remedy and I have made a recommendation below.

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Agreed Action

45. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Provide a written apology to Miss X;
• Pay Miss X £700 to recognise the uncertainty, avoidable distress and frustration caused by the seven-month delay in completing Y’s EHC needs assessment and issuing her EHC Plan;
• Pay Miss X £1800 to address Y’s missed education and for the Council failing to suitably consider and act on its Section 19 duty. This amount is to be used by Miss X for Y’s educational benefit.
• Pay Miss X £500 for the avoidable distress over a significant period caused by the Council’s delay in processing a request for funding for Y’s education;
• Pay Miss X £500 for the avoidable distress caused by the Council’s lack of communication regarding her child’s education.
46. The Council will provide us with evidence it has complied with the above actions.

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Decision

47. 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