Summary: Mrs X complained about Education, Health and Care (EHC) needs assessment delays and a failure to put alternative provision in place for her child Y when they stopped attending school at the end of 2023. The Council delayed issuing Y’s final EHC Plan by one month. It also failed to carry out oversight of Y’s alternative provision arrangements which meant Y went without education between January and April 2024. The Council agreed to make payments to recognise the injustice caused and carry out a service improvement. I have not considered Y’s education after April 2024 as Mrs X has appealed Y’s EHC Plan to the SEND tribunal which puts that period out of our jurisdiction.

The complaint

1. Mrs X complained the Council delayed completing her child, Y’s, Education, Health and Care (EHC) needs assessment causing a delay issuing the final EHC Plan. She also complained the Council failed to ensure Y received alternative provision after they stopped attending school in November 2023.
2. Mrs X said the matter has impacted on Y’s development and has caused frustration and uncertainty.

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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. 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.
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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What I have and have not investigated

7. I have investigated the delays in completing Y’s EHC needs assessment and whether the Council met its duty to provide alternative provision up to the end of April 2024 when it issued Y’s final EHC Plan.
8. I have not investigated events from May 2024 onwards because Mrs X used her right of appeal to the SEND tribunal against the content and the school named in Y’s EHC Plan. In line with paragraphs 13 to 17 below this puts the period May 2024 onwards outside of our jurisdiction.

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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

Relevant law and guidance

Education, Health and Care Plans

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.
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 Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;

• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; 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.

SEND tribunal

13. 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.
14. There is a right of appeal to the Tribunal against a council’s 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.
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. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
17. 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 provision and the Section 19 duty

18. 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.
19. 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

20. Mrs X has a child, Y, who at the start of the 2023/24 academic year was of primary school age and attended a mainstream primary school, School 1.
21. Y had special educational needs and a diagnosis of autism and was struggling to attend school. Mrs X asked the Council in November 2023 to carry out an EHC needs assessment for Y which it agreed to do in December 2023. In line with statutory timescales the Council should then have issued any final EHC Plan by the end of March 2024.
22. Mrs X told the Council in early November 2023 that Y was not attending school and asked for some support for Y. Records show the Council contacted School 1 who then held a meeting with Mrs X. School 1 put in place a part-time timetable for Y to attend for four hours Tuesdays to Thursdays with adult one-to-one support in place with a view to Y gradually reintegrating back to school. The Council said it did not hear anything further from Mrs X or School 1 about further support of whether alternative provision was required. Mrs X told us that the part-time arrangement with School 1 stopped at the end of December 2023 and she had no further input or contact from the Council and no further provision for Y.
23. Following the EHC needs assessment the Council issued Y’s final EHC Plan at the end of April 2024, five weeks later than timescales allowed. The EHC Plan named Y’s current school, School 1 as Y’s placement.
24. Mrs X appealed the content of Y’s final EHC Plan and the naming of School 1 to the SEND tribunal. Records show the SEND tribunal is due to hear Y’s case in September 2025.
25. Mrs X complained to the Council. She complained;
• the Council delayed issuing the final EHC Plan following the needs assessment;
• the Council named School 1 despite it being unable to meet Y’s needs; and
• Y had been without alternative provision since January 2024 despite it knowing as part of the EHC needs assessment process that Y was unable to attend School 1.
26. The Council provided a final complaint response. It apologised for not meeting the 20-week deadline to issue Y’s EHC Plan. The Council said School 1 was putting alternative arrangements in place. It said School 1 had sent work home and supported Y with a part-time timetable. It said the tribunal team would continue working with Mrs X through the appeal process.
27. Mrs X remained unhappy and complained to us.

My findings

EHC needs assessment delays

28. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are breaches of those timescales.
29. After agreeing to carry out an EHC needs assessment for Y and then agreeing to issue an EHC Plan the Council should have issued the final Plan by the end of March 2024. The Council did not issue Y’s final EHC Plan until the end of April 2024 which was a delay of around one month. That was fault and caused Mrs X frustration and delayed her right of appeal to the SEND tribunal which she ultimately used.

Y’s alternative provision

30. The Council became aware in November 2023 that Y was not attending School 1 and that they and Mrs X required support. At the time, the Council appropriately liaised with School 1 about supporting Y. School 1 outlined the support it would put in place which included a part-time timetable and a reintegration plan. This, however, ceased by the end of December 2023.
31. The Council was on balance, aware of Y’s circumstances due to the ongoing EHC needs assessment process. While it can delegate the arrangements for alternative provision to schools the Council remains the body with overall responsibility. There is no evidence the Council carried out any oversight of Y’s circumstances during the early part of 2024 or further considered whether it had a Section 19 duty. I have not seen evidence of any provision from School 1 in place during this period. Given the Council accepted Y required additional support in November 2023, it is likely on balance that with proper oversight in place the Council would have decided some alternative provision was appropriate between January and April 2024 when it was clear School 1 was no longer providing alternative arrangements. The failure to carry out oversight of Y’s absence from School 1 was fault and meant Y went without appropriate provision between January and April 2024.

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Action

32. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mrs X and pay her £150 to recognise the frustration, uncertainty and delayed appeal rights caused by both the delay in issuing Y’s final EHC Plan and the failure to have oversight of Y’s education and alternative provision between January and April 2024. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. Pay Mrs X £1500 to recognise Y’s loss of alternative provision between January and April 2024. This remedy is in line with our guidance on remedies and based on Y’s circumstances at the time.
3. Review its procedures to ensure it maintains regular oversight of alternative provision when it has delegated responsibility to schools. The procedures should ensure alternative provision remains appropriate for the child or young person in line with the Council’s Section 19 duty or for the duration it is in place.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I find fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman