Summary: Ms X complained the Council delayed completing an Education, Health and Care (EHC) needs assessment after a tribunal ordered it to complete one in October 2023. Ms X also complained it delayed issuing the final EHC Plan for her child, Z, until July 2024, and did not provide an appropriate education in the interim. The Council was at fault. The Council will apologise and make payments to Ms X to recognise the avoidable frustration she was caused and the specialist educational provision and alternative provision Z missed out on.

The complaint

1. Ms X complained the Council delayed completing an Education, Health and Care (EHC) needs assessment after a tribunal ordered it to complete one in October 2023, delayed issuing the final EHC Plan for her child, Z, until July 2024 and did not provide an appropriate education in the interim. Ms X also complained the Council’s communication with her about the matter was poor.
2. Ms X said as a result, Z missed education, could not sit their GCSE exams and they were both caused frustration and distress. Ms X wanted the Council to acknowledge its faults, improve its service and provide recompense for the distress they experienced.

Back to top

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 most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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.
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
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).

Back to top

How I considered this complaint

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

Back to top

What I found

Relevant legislation and guidance

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 Tribunal or the 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 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.

13. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment; 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.

Tribunal order

14. Where the SEND tribunal has considered an appeal and ordered that a council must arrange an Education, Health and Care needs assessment the council shall notify the parent within two weeks that it will make the assessment. If the council then decides it is necessary to issue an EHC Plan for the child or young person, it must issue the finalised EHC Plan as soon as practicable and with 14 weeks of the date of the order.

Alternative provision

15. 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.
16. 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)
17. 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)

What happened

Background information

18. Z is a young person of secondary school age and lives at home with their mother (Ms X) and their siblings. Z has some learning needs and experiences anxiety. At the time of the events described here, Z was in year 11. Z was on roll at School 1, a mainstream secondary school.
19. In 2023 Ms X requested the Council complete a needs assessment of Z for an EHC Plan. The Council decided not to complete an assessment and Ms X appealed that decision to the SEND Tribunal.

This investigation

20. The Tribunal ordered the Council to complete an EHC needs assessment at the beginning of November 2023. The Tribunal noted Z was offered a temporary place at an alternative provision for students with mental health conditions (Provision 2) in September 2023, but they had been unable to access it due to anxiety.
21. Attendance records show Z did not attend any school from November 2023.
22. The Council states it decided to issue an EHC Plan for Z in mid-January 2024.
23. At the beginning of February the Council said it issued a draft Plan for Ms X’s comments and asked her which school or college was her parental preference. As it did not receive a response the Council contacted Ms X again at the end of February. Ms X told the Council Z was not attending Provision 2 and requested tuition. The Council said it agreed to provide 10 hours of tuition a week for Z and the tuition began two weeks later.
24. Z’s tutor and Ms X contacted the Council and asked if Z would be sitting their GCSE exams in April. The Council contacted School 1 and confirmed Z had been entered for their exams.
25. Ms X stated Z did not sit the exams as they did not have sufficient time to prepare or to confirm exam access arrangements.
26. Z’s tutor told the Council in May that Z had declined tuition on the basis they did not know they were doing their GCSE exams. Later that month the tutor told the Council Z had re-engaged for eight hours per week and planned to re-sit the exams at the end of the year.
27. The Council asked Ms X for her parental preference again in June 2024. In mid-July the Council asked Ms X if Z wanted to attend a college or continue with tuition and if there were any colleges Z wanted to go to.
28. The Council issued a final EHC Plan for Z at the end of July 2024. The Plan said Z should attend a mainstream school. The Plan set out Z needed:
• A carefully planned transition back to participating in education, initially learning part time and gradually increasing
• 10 hours per week tuition in preparation for transition to further education
• Ongoing support in lessons around comprehension, organisation and social interaction.
• 45 minutes per week intervention on social interaction
• 30-40 minutes of English intervention per week
• 30-40 minutes of maths intervention per week
• 45-60 minutes of emotional literacy intervention per week
• Weekly time for touch-typing skills
• Weekly independence skills sessions
• Consideration of exam access arrangements
29. Ms X complained to the Council at the beginning of July 2024. She said she had been trying to contact the Council for months but was being ignored. Ms X said Z had missed their exams and education as the Council had not arranged alternative provision. Ms X also complained the Council had not issued a final EHC Plan despite a tribunal order telling it to do so and had not responded to her request for a review of the Plan.
30. The Council responded at the end of July 2024. It accepted it had delayed in issuing the EHC Plan but it had now issued it. It told Ms X that Z was on roll at School 1 and as there was no EHC Plan in place the school was responsible for organising examinations. It said Z had been attending Provision 2 and it organised tuition when Ms X requested it after Z stopped attending Provision 2.

My Findings

Education, Health and Care Plan

31. The SEND Tribunal ordered the Council to complete an Education, Health and Care needs assessment for Z in November 2023. In line with the regulations, having decided to issue an EHC Plan, the Council should have gone on to issue the final Plan within 14 weeks of the Tribunal order, so by the first week in February 2024. The Council did not issue Z’s final EHC Plan until the end of July, which was a delay of 24 weeks and was fault.
32. The Council said the delay in issuing the final Plan was caused by Ms X not responding to its request for her parental preference. However, the Council could have issued the EHC Plan without that information either by naming a placement it identified as suitable for Z’s needs, or by naming the type of placement Z should attend.
33. Had the Council acted without fault it would have issued the final EHC Plan in early February 2024. It’s failure to do so caused Ms X frustration. It also caused Z to miss out on the specialist provision set out in their Plan between February and July 2024. The Council did arrange for Z to receive 10 hours of tuition from mid-March, however Z missed out on the consideration of exam access arrangements and the carefully planned transition to further education. I have taken these matters into account in the remedy I have recommended below.
34. The Council was not responsible for the booking and communication about Z’s GCSEs. This was the responsibility of School 1, where Z was on roll. I cannot investigate this point for the reason set out in paragraph four.

Alternative provision

35. The SEND Tribunal recorded in November 2023 that Z was unable to access Provision B due to anxiety. There is no evidence the Council considered if the provision on offer for Z at this time was available and accessible to Z, or whether it owed Z a section 19 alternative education duty. This was fault.
36. The Council did not consider its duty until Ms X asked for tuition in February 2024. At that time the Council agreed to provide tuition, on balance it decided it owed a section 19 duty and decided the tuition was suitable for Z’s needs. There is no evidence Z’s circumstances had changed since November 2023 and so, had the Council acted without fault, it would have arranged a form of alternative provision, such as tutoring, sooner than it did. Its failure to do so meant Z missed out on alternative provision between November 2023 and February 2024, when the Council should have issued the final EHC Plan.

Communication and complaint handling

37. During the period I have investigated, the records show the case officer responded to Ms X’s communication promptly and contacted Ms X on a regular basis to gather information. There was no fault in the Council’s communication.
38. The Council accepted fault for its delay issuing Z’s final EHC Plan in its complaint response. However it did not consider the injustice this caused to Ms X or Z, or provide a suitable remedy. This was fault and caused Ms X frustration. I have made an appropriate recommendation below.

Previous recommendations

39. In a previous unrelated investigation we recommended the Council produce an action plan to prevent delays in Education, Health and Care Plan timescales and to review the action plan at its Special Educational Needs and Disabilities Governance board for monitoring in June 2025. I have therefore not made any further recommendations on that point. We will continue to monitor this through our investigations.

Back to top

Action

40. Within one month of this decision the Council will:
1. Write to Ms X and apologise for the avoidable frustration she was caused, and the specialist educational and alternative provision Z missed as a result of the Council’s faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended;
2. Pay Ms X a symbolic amount of £250 to recognise the avoidable frustration she was caused;
3. Pay Ms X £3,000 to recognise the specialist educational provision Z missed between February 2024 when the Council should have issued the EHC Plan and July 2024 when it issued the Plan, and £1,200 to recognise the alternative provision Z did not receive between November 2023 and February 2024 when the Council should have issued the final EHC Plan - £4,200 in total. Ms X should use this for Z’s educational benefit as she sees fit; and
4. Remind relevant staff to consider whether the Council owes a child or young person a section 19 alternative provision duty where it is aware the young person is not attending school, including where the Council is carrying out an Education, Health and Care needs assessment for the young person.
41. The Council will provide us with evidence it has complied with the above actions.

Back to top

Decision

42. I find fault causing injustice. The Council agreed to my recommendation to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman