Summary: Mrs X complained that the Council failed to complete an Education, Health and Care needs assessment for Y within statutory deadlines and failed to provide alternative provision while she was out of school. We find the Council at fault for delays, causing uncertainty and distress for Mrs X and Y. The Council has agreed to apologise and make a payment to recognise the injustice.

The complaint

1. Mrs X complains the Council failed to complete an Education, Health and Care (EHC) Needs assessment and issue an EHC Plan for her daughter, Y within statutory deadlines. Mrs X also complains the Council failed to provide funding for the alternative provision Y received since she was out of school from February 2024 and communication has been poor throughout. Mrs X says this has caused considerable stress to her and Y, has impacted Y’s education, and means she has had to spend a lot of time chasing answers from the Council.

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The Ombudsman’s role and powers

2. 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)
3. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
4. 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)
5. 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

6. We cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us.
7. The Council gave its final response to Mrs X’s complaint in November 2024. If Mrs X wants to complain about events that have taken place since November 2024, she would first need to raise any issues with the Council and give it an opportunity to respond.
8. I have investigated Mrs X’s complaint, as set out in paragraph one, from July 2023 until November 2024. Any mention below to events that took place outside of these times are for reference only.

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How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs 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

EHC Needs Assessment

11. A child or young person with special educational needs (SEN) may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
12. On receiving a request for an EHC needs assessment, a council must decide whether an assessment is necessary. As part of an EHC needs assessment, a council must seek advice from the parent, head teacher of the school, and from any other professionals, including an Educational Psychologist (EP).
13. 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 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 a Council decides to assess a child’s EHC needs, they must gather information from relevant professionals, who must respond within six weeks;
• If the Council decides not to issue an EHC Plan, it must explain this within 16 weeks from the date of the request.
• If it decides to issue an EHC Plan, the Council must then send a draft plan to the child’s parents, giving them 15 days to comment; and
• 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.

Alternative provision

14. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
15. The "otherwise" category provides for a wide range of scenarios where the Council may have a legal duty under section 19. It would include, for example, when a child was refusing to attend school due to anxiety or phobia. (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 they may have. (Education Act 1996, section 19(6))
17. 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)
18. When reintegration into school is anticipated, councils should work with schools to set up an individually tailored reintegration plan for each child. This may have to include extra support to help fill any gaps arising from the child’s absence.
19. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.

What happened

20. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
21. On 10 July 2023 Mrs X contacted the Council and asked it to complete an EHC needs assessment for Y. The Council wrote to Y’s school, School A to ask for more information to help it decide whether to assess Y’s EHC needs.
22. On 21 August 2023, the Council missed the deadline to decide whether to assess Y’s EHC needs. It wrote to Mrs X four weeks later to let her know it had decided to proceed with an EHC needs assessment. The Council explained it had now asked for advice from the relevant professionals, including an EP.
23. On 30 October 2023 the Council missed the 16-week deadline to let Mrs X know whether it had decided to issue an EHC Plan for Y.
24. On 27 November 2023 the Council missed the 20-week deadline to complete the assessment and issue an EHC Plan, if that is what it intended to do.
25. The Council’s SEND panel considered Y’s case in November 2023 and decided not to issue an EHC Plan for her. However, by this point, the Council had not yet received all the advice it had requested.
26. The Council received the outstanding advice in January 2024. Its SEND panel then reconsidered Y’s case and decided to issue and EHC Plan for her.
27. Mrs X contacted the Council in February 2024 to explain Y’s placement at School A had broken down and she was no longer attending. A call note from that time shows Mrs X told the Council she had de-registered Y from School A and enrolled her with an online provider, School B, and other alternative provision providers to ensure Y received education while she awaited the final EHC Plan.
28. In April 2024 the Council issued a draft EHC Plan for Y and agreed a personal budget to cover the cost of School B until the end of the academic year.
29. The Council met with Mrs X at the end of April 2024 to discuss the draft. The Council’s notes suggest that during this meeting it also discussed the alternative provision Y was receiving to ensure it was suitable for her needs.
30. The Council then agreed to pay Mrs X a personal budget to cover the provision at School B.
31. In May 2024, Mrs X provided the Council with evidence from a cognitive behavioural therapist (CBT) who explained Y did not have the capacity to access full time education at that point.
32. The Council issued an amended draft EHC Plan for Y in October 2024.
33. On 7 November 2024, the Council issued a final EHC Plan for Y.

Analysis

EHC Needs Assessment

34. The Council initially received a request to assess Y’s EHC needs on 10 July 2023. The Council promptly sought further information but missed the deadline by which to decide whether it would assess Y’s EHC needs. The Council also missed subsequent deadlines to let Mrs X know whether it had decided to issue an EHC Plan for Y. This is fault and caused considerable uncertainty for Mrs X and Y, which is injustice.
35. If the Council had completed the EHC needs assessment process in line with statutory time limits, Y’s EHC Plan would have been finalised by 27 November 2023. However, the Council did not finalise Y’s EHC Plan until November 2024, around 12 months after the deadline to do so. This is a considerable delay which would have caused significant uncertainty and frustration for Mrs X, as well as frustrating her rights to appeal to the tribunal. The delays also created uncertainty around whether Y was missing out on special educational provision she would have been entitled to between November 2023 and November 2024. This is injustice.
36. Throughout the delay, there were frequent periods of inactivity meaning Mrs X had to chase the Council for updates. Failure to keep Mrs X updated throughout this process is poor practice and amounts to fault which caused further uncertainty to her.

Alternative provision

37. Mrs X let the Council know Y was not attending School A in February 2024. At this point, the Council needed to consider its duty to make arrangements for the provision of suitable education or consider enforcing attendance at School A.
38. The information I have seen shows Mrs X had already deregistered Y from School A and enrolled her at School B by the time she informed the Council that the placement had broken down. Call notes from the time suggest the Council explained it would only commission education otherwise than at school if it was satisfied Y could not attend a mainstream or a specialist school. I could not find the Council at fault here as Y had already been removed from School A and enrolled at School B.
39. The available evidence shows the Council stayed in contact with Mrs X about the placement at School B and agreed a personal budget to cover the costs of this. The Council also considered evidence Mrs X provided from a CBT when accepting that the level of education Y was receiving from School B was suitable for her needs at that time. I could not find the Council at fault for failing to consider whether the level of alternative provision was suitable for Y.
40. The Council has said that it discussed the suitability of alternative provision with Mrs X during a meeting at the end of April 2024. Mrs X disagrees and says this meeting was predominantly to discuss the EHC Plan draft and alternative provision was only discussed briefly. Where there is a conflict of testimonies it is difficult to make a finding, even on balance as to what happened. However, it seems clear that the topic of alternative provision was discussed. Based on all the evidence available to me, I do could not say the Council failed to consider whether the alternative provision was suitable.
41. It is not my role to say what alternative provision Y should have received or what level of education was suitable for her. However, the evidence the Council has provided suggests it followed the right process when making decisions, so I cannot find it at fault here.

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Action

42. To address the injustice identified above, the Council should carry out the following actions within one month:
• Provide Mrs X with a written apology for the injustice caused by the failure to complete Y’s EHC needs assessment within the statutory time limits. 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; and
• Pay Mrs X £500 to acknowledge the distress, frustration and uncertainty caused by the Council’s failure to issue Y’s EHC Plan in line with the statutory timescales, and for the failure to keep her updated.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman