Summary: Mrs X complained the Council delayed issuing her child’s Education, Health and Care (EHC) Plan and did not provide any education while they were unable to attend school. Based on current evidence, we find the Council was at fault for delay in issuing the EHC Plan and failing to consider if it should provide alternative education. The Council should apologise to Mrs X and make a payment to her, and another for her child’s benefit, to remedy the injustice caused in terms of uncertainty, frustration, and distress.

The complaint

1. Mrs X complained that the Council took a year longer than the statutory timescale to issue an Education, Health and Care (EHC) Plan for her daughter, Y, who has special education needs (SEN). She also complained that communication by the Council was poor during the period of the delay, including not informing her when Y’s case had been considered at Panel. Y was unable to attend school during the period of the delay, and the Council did not offer alternative provision.
2. Mrs X said that the Council’s actions caused injustice to Y in that she missed a full year of education, including not having an opportunity to take the Standard Assessment Tests (SATS) at the end of year 6. Mrs X said the delay in issuing the EHC Plan also meant that a place was no longer available at her preferred school. Transition to the school named in the EHC Plan was negatively impacted as the EHC Plan was issued too late for Y to benefit from timely transition support. Mrs X said the delay and uncertainty caused distress and frustration to both her and Y, and significantly affected their mental health.
3. Mrs X wants the Council to provide suitable compensation for the injustice caused to Y and her family.

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The Ombudsman’s role and powers

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 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)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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)
8. 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.
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. My investigation is focused on the period between the Council agreeing to assess Y for an EHC Plan, in May 2023, and that Plan being issued in July 2024, roughly equivalent to the 2023-2024 school year (Y’s year 6).
12. The end point of my investigation is July 2024, when the EHC Plan was issued. From this point, Mrs X had a right of appeal to the SEND Tribunal about the provision specified and the setting named in the EHC Plan. The right of appeal puts these aspects of her complaint beyond our jurisdiction, meaning we cannot investigate them as set out in paragraph seven.

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How I considered this complaint

13. I have:
• considered Mrs X’s written complaint and supporting papers;
• talked to Mrs X about the complaint; and
• made enquiries of the Council.
14. I shared a draft of this statement with Mrs X and the Council for their comments before I made my final decision.

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What I found

Legal and administrative background

Education, health and care plan

15. 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 (Special Educational Needs and Disability) or council can do this.

Timescales and process for EHC assessment 

16. 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.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Appeal rights

17. The First-tier Tribunal (Special Educational Needs and Disability) (the Tribunal) considers appeals against council decisions regarding special educational needs.
18. 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;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

Alternative provision

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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
20. 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)
21. 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’)

What happened

22. Below is a summary of events that are either relevant to my investigation or are included to provide context. It is not an exhaustive chronology of every exchange between parties.

2023

23. The Council agreed to assess Y for an EHC Plan on 19 May (this was week 6 of the statutory process). It explained to Mrs X that it would gather evidence from the relevant professionals, to include an educational psychologist, and would write to her by the end of July with its decision as to whether it would issue a Plan (that is, by week 16 of the statutory process).
24. Y’s primary school attendance record showed that she had already missed 15 days of education by the end of the first half term of year 6 (late October 2023).
25. The educational psychologist who had been asked to assess Y’s needs provided their advice to the Council on 14 December.

2024

26. The draft plan was issued on 9 February.
27. A consultation was sent to the special school Mrs X wanted Y to attend on 5 March 2024 and to a mainstream high school on 23 April 2024. Consultation responses were received promptly from each.
28. Mrs X’s advocate complained to the Council in May about the delay in finalising Y’s EHC Plan.
29. The final plan was issued on 12 July, and to Mrs X on 16 July, naming the mainstream high school as the educational setting.
30. Y’s primary school attendance record showed that she attended sporadically until February half term, after which she did not attend school for the remainder of year 6.

Mrs X’s account

31. Mrs X told me that the primary setting that Y had attended had not met her SEND needs. Due to anxiety, Y had been unable to attend school for most of year 6, so had missed her SATS and the chance to have a supported transition to high school. On days where Y had attended school, this had often been for an hour or so, was in a side room with a teaching assistant rather than in the classroom, and she had not taken part in educational activities. The school had not provided work for Y to do at home, and the Council had not offered any alternative provision.
32. Mrs X said Y had been very distressed throughout the period of the delay, to the extent that she had self-harmed and had panic attacks. Mrs X had also experienced significant anxiety and uncertainty: she said she was constantly chasing the Council for updates and not receiving promised callbacks.
33. Mrs X said she was told informally by the Council that her preferred special school would be named in the EHC Plan, so she started preparing Y for that in December 2023. As the educational psychology report had been received by then, she thought the Council would issue the draft, and then the final, EHC Plan early in 2024.
34. Mrs X said the Council had admitted that its decision-making panel had decided on the mainstream school in Spring 2024, but she hadn’t been informed of that outcome, and had continued to prepare Y for transition to her preferred school.
35. Mrs X said she felt distressed that she had unwittingly prepared Y for a school she was not, in the event, able to attend. By the time the Council issued the EHC Plan in July 2024, naming the mainstream high school, it was too late for Y to join any of the planned transition activities. She did attend some additional transition sessions, but as these took place when the school was closed, they did not give Y a realistic expectation of what the high school experience would be like.

The Council’s account of the delay

36. In its final response to Mrs X’s complaint, the Council acknowledged that:
• It had delayed issuing the draft EHC Plan due to the delay in receiving advice from the educational psychologist.
• It had delayed issuing the final EHC Plan due to the volume of work within the Council, and staff absences.
• The Council’s communications to Mrs X and her advocate had not been good enough: updates had not been appropriately frequent, responses to calls had not been made in a timely fashion, Mrs X had not been informed of the outcome of the decision-making panel meeting, and the Council’s internal processes had not been clearly explained.
37. The Council offered an apology for the distress caused to Mrs X and to Y, and offered a symbolic payment of £300 in recognition of its failings. (Mrs X said she did not accept this offer and so the payment was not made to her).
38. We asked the Council about the action it was taking to reduce the delays caused by the shortage of educational psychologists. It told us it had funded additional capacity from locum educational psychologists and educational psychologists in private practice, including a pool of educational psychologists supplied by an agency. The Council said this had led to an overall improvement in timeliness and completion of EHC Plans.
39. With reference to the period of delay that occurred after the educational psychologist’s advice was received, between December 2023 and July 2024, the Council told us that it had recognised that it should have consulted with the mainstream high school concurrently with Mrs X’s preferred special school, not sequentially. This had delayed matters by almost two months. The Council said that it had increased the capacity of its SEN service since the time of this complaint, to increase capacity and minimise delays. It has also provided training across the service regarding decision making and communication with parents.
40. The Council explained that both schools had said they could meet Y’s needs, and both had offered her a place for September 2024. The Council’s decision to name the mainstream high school in the EHC Plan had been made on the basis that it was the best use of public resources.

Y’s lack of school attendance during year 6

41. The Council said it was aware throughout the EHC Plan process that Y had “struggled with attendance”, but that it was not reported to the Council until 5 June 2024 that Y was not attending school at all.
42. However, the Council also told us that “The Council via the Education Welfare Officer advised the school 28.11.23 to send a Letter 2 of the Staged process – Support First Model”, which suggests it was aware of a significant lack of attendance at that time.
43. When I asked what consideration the Council had given to its duty to provide alternative provision when it became aware Y was not attending school, the Council said it had not received a referral for such provision.
44. However, I have seen an email from Mrs X’s advocate to the Council’s Education for Sick Children Team in March 2024 asking for advice and support with Y’s attendance, which was already below 50% for the school year. She asked whether medical needs tuition might be an option for Y as she was unable to attend school.
45. The Council told me that, had it finalised Y’s Plan earlier, it would have named the primary school she was already on roll at as the educational setting for year 6, as that school was “able to make the provision identified”.

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Analysis

EHC Plan Delay

46. The Council did not issue the draft or final EHC Plans within the statutory timescales set out at paragraph 16. The final EHC Plan for Y should have been issued by 23 August 2023, 20 weeks after her parents requested an assessment. In the event, the final EHC Plan was issued in mid-July 2024. This was a delay of 11 months.
47. The first four months of the delay, until mid-December 2023, was caused by the delay in the Council receiving formal advice from its Educational Psychology Service. This was caused by the national shortage of educational psychologists. Because this aspect of the delay was caused by factors outside of the direct control of the Council, we describe it as service failure rather than maladministration. I am satisfied with the actions the Council has told me it is taking to address the educational psychology capacity available to it and so I will not make further recommendations in this regard.
48. The delay is, nevertheless, fault. That fault caused an injustice to Mrs X: it caused her frustration in chasing an outcome and distress in that she spent that time preparing Y to attend a different school, and I will make a recommendation to remedy that injustice.
49. After the Council received the educational psychology report, it should then have followed the timescales set out in the Code to issue a draft EHC Plan, consult with parents and schools, and issue a final plan. This usually takes six to eight weeks after a council receives the educational psychology report, meaning that the final EHC Plan could have been issued in mid-February. The delays in drafting, consulting, and issuing a final plan after this date totalled a further five months beyond mid-February. These delays were caused by maladministration, which is fault. I welcome the Council’s acknowledgement that it should have consulted with both schools at the same time, as its failure to do so was also fault.
50. I find the delay was frustrating for Mrs X, and put her to avoidable time and trouble in pursuing a complaint. Further, had the Council issued Y’s EHC Plan promptly on receipt of the educational psychologist’s advice, the provision identified within it might have enabled Y to attend school, take the SATS, and benefit from a supported transition to high school. So, the delay also caused ongoing uncertainty and distress for both Mrs X and Y.

Educational Provision

51. Y’s school attendance throughout year 6 was less than 25%. The records show the Council was aware in November 2023 that Y was struggling to attend school as its Education Welfare Officer became involved. However, there is no evidence the Council considered if it owed a section 19 duty as set out in paragraphs 19 to 21. The Council was made aware again in March 2024 by Mrs X’s advocate but has not provided any evidence it considered its duty at that point. The Council told us it had not received a “referral”, that is, a request for alternative provision, but the section 19 duty is a proactive one and the Council should not have required a specific referral in order to act in response to the information it had.
52. The Council’s failure to assess Y’s situation and decide whether it needed to provide her with suitable alternative education during the 2023/24 school year was fault. In terms of the potential injustice suffered, I cannot make a finding on what, if any, provision Y missed out on. This is because I cannot know what, if any, alternative provision the Council would have offered, and nor can I know whether Y would have been able to engage with the provision offered. I therefore find that Mrs X and Y suffered the injustice of uncertainty about what action the Council would have taken had it acted without fault.

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Action

53. To remedy the injustice caused by the identified faults, the Council should, within four weeks of my final decision:
• Apologise to Mrs X and to Y for the injustice caused by the faults identified above. The apology should be made in line with our published guidance on making an effective apology.
• Make symbolic payments to Mrs X of:
1. £400 for the impact caused by the four-month delay in obtaining advice from an educational psychologist to inform the draft Plan for Y;
2. £200 for the impact caused by the failure to adhere to statutory timescales when finalising the EHC Plan for Y after the educational psychologist’s report was received; and
3. £300 for the impact of the uncertainty about what educational provision may have been offered to Y during the academic year September 2023 to July 2024, had the Council considered her absence in line with its section 19 duties.
54. These payments are symbolic amounts in line with our published guidance on remedies. They are recommended instead of, not in addition to, the payment already offered (but not made) by the Council. The total to be paid to Mrs X is £900.
55. Within three months of my final decision, the Council should put measures in place to ensure that it will proactively consider its section 19 duties in cases where children are absent from school for extended periods.
56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. I found fault by the Council which caused Mrs X and Y injustice. The Council agreed to implement the recommendations I made to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman