Summary: Mrs X complained that the Council has delayed in completing an Education, Health and Care Needs Assessment for her daughter, Y, within the statutory timeframes. Mrs X also says Y has missed out on education. Mrs X says this has caused both her and Y distress and frustration. We have found fault in the actions of the Council. We recommend the Councils writes to Mrs X to apologise, pays a financial remedy and completes Y’s Education, Health and Care Needs Assessment.

The complaint

1. Mrs X complained that the Council has delayed in completing an Education, Health and Care Needs Assessment (EHCNA) for her daughter, Y, within the statutory timeframes. Mrs X also says Y has missed out on education.
2. Mrs X says this has caused both her and Y distress and frustration.

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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)
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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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

9. Children with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F sets out the child’s special educational provision and section I ‘names’ the school or type of school the child will attend.
10. 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:

• where a council receives a request for an EHC assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC Plan after an assessment, it should prepare a draft EHC Plan. The council should send the draft Plan to the child’s parent or the young person and give them at least 15 days to comment. It should also send the Plan to schools that may be able to accept the child or young person and meet their needs. This should take around six weeks; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC Plan.

11. There is a right of appeal to the SEND (Special Educational Needs and Disabilities) Tribunal about the educational provision and placement named in a child’s EHC Plan. This appeal right is only engaged once the final EHC Plan has been issued.

Alternative educational provision

12. 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.
13. 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
14. 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;

15. 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

16. Mrs X contacted the Council in early June 2024 to request an EHCNA for her daughter Y. The forms completed by Mrs X say she was home educating Y at that point.
17. The Council told Mrs X the EHCNA was agreed in mid-July 2024 but explained it could not allocate an Educational Psychologist (EP) to complete their assessment due to delays. Mrs X also enrolled Y in a local school in July 2024.
18. The Council received a referral from Y’s school in September 2024 due to her not being able to attend. The Council contacted the school to ask for further information about Y’s attendance and medical information.
19. Mrs X complained to the Council in early October 2024 about the delay in completing Y’s EHNCA.
20. The Council issued a response to Mrs X in mid-October 2024 which apologised for the delay and confirmed there was a shortage of EP’s.
21. In mid-October 2024 the Council received the information it had asked for about Y’s attendance at school and contacted the school to arrange a meeting with Mrs X and medical professionals.
22. Mrs X raised a further complaint with the Council in late October 2024 and said Y could not attend school.
23. The Council replied to Mrs X’s complaint in early November 2024 and said it was still awaiting an EP to be allocated to Y’s case. The Council also advised it had made a referral to the Education Access Team for Y.
24. The Council attended a meeting with Y’s school, Mrs X and medical professionals in mid-November 2024. The Council considered its section 19 duty and decided it would put in place face-to-face tutoring for Y for 15 hours a week to take place at home. The Council told Mrs X it thought it would need extra time to secure a tutor and offered an online learning platform for Y while it sought a tutor. Mrs X declined the online platform. However, the school were already providing an online learning platform.
25. The Council had not received any bids to provide the tutoring Y needed in late November 2024, so it changed the details to try to source a tutor. The Council found a tutor in early December for some of the provision.
26. The Council held a meeting in mid-December 2024 and discussed offering the remaining tutoring provision via an online platform, but Mrs X decided against this.
27. The Council again offered online tutoring in mid-January 2025 which Mrs X again decided to decline. Mrs X decided to accept the online tutoring in late-January 2025.
28. Mrs X contacted the Council in mid-February 2025 to say she had sourced a placement for Y and asked the Council for help with fees and transport to the placement.
29. The Council responded to Mrs X and said it could not help with fees or transport costs.
30. The Council allocated an EP to Y’s case at the end of February 2025.

Analysis

Education, Health and Care Plan

31. Mrs X asked for an EHCNA for Y in June 2024. The Council should have completed this process within 20 weeks but has not. This is fault and has caused Mrs X and Y distress and frustration.
32. The Council has explained the delay is due to a shortage of EP’s and has previously advised the Ombudsman of the steps it is taking to address this.
33. I understand the Council has now allocated an EP to Y’s case and it is shortly due to receive advice to allow it to complete this process.

Alternative provision

34. Mrs X enrolled Y into a local school in July 2024 after she home educated her previously. The Council were told that Y was not attending at the end of September 2024 and asked for further information from the school and medical professionals to find out why Y was not attending.
35. The Council then asked for a meeting with the school, Mrs X and medical professionals which could not be arranged until mid-November. I understand online learning was available to Y throughout this period provided by the school.
36. The Council agreed at the meeting Y should receive tutoring and attempted to source this. While trying to source a tutor the Council offered an online learning platform to Y, but Mrs X decided against accepting this.
37. The Council struggled to find a tutor for Y and repeated its offer of an online platform which Mrs X again declined until late January 2025.
38. Once the Council was aware Y was not attending school and the reasons for this it acted to arrange a meeting and agreed alternative provision for Y. I accept the Council agreed to provide a tutor for Y and did not do so. However, this was due to the Council not being able to find a tutor. The Council offered to put an online learning platform in place for Y in addition to the online learning the school were providing to ensure Y was receiving some provision. I have not found fault in the Councils actions in relation to providing alternative provision.
39. Mrs X then sourced a placement for Y and asked the council for help with the fees and transport to the placement. The placement was not identified by the Council and Y’s EHC Plan is not yet in place. Therefore, it is not clear what placement would be appropriate for Y or what the outcome of the EHCNA will be. I appreciate Mrs X is paying a significant amount of money for Y to attend the placement she sourced. While I understand Mrs X’s reasons for accepting the placement, she did so knowing that fees would be payable.

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Action

40. Within one month of a final decision, the Council should:

• Write to Mrs X to apologise for the faults identified. 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.
• Pay Mrs X £600 to recognize the delay in completing Y’s EHCNA. This is calculated at roughly £100 per month of delay.
• Complete the EHCNA process for Y.

41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman