Summary: Mrs X complained her daughter, Y, has been unable to access education since September 2023 and the Council refused to complete an Education, Health and Care needs assessment. We find the Council at fault for failing to record its section 19 consideration and for applying a higher threshold to the legal test to determine if an Education, Health and Care needs assessment was necessary. This caused Y and Mrs X distress, frustration and uncertainty. The Council has agreed to apologise, make a symbolic financial payment, complete staff training and amend its decision letter template.

The complaint

1. Mrs X complained her daughter, Y, has been unable to access education since September 2023 and the Council overturned its decision to refuse to carry out an assessment of Y’s Education, Health and Care needs at mediation despite no new evidence being provided. Mrs X also complains the Council has named a mainstream school in section I of Y’s Education, Health and Care Plan despite local mainstream school saying they cannot meet her needs and professional evidence showing Y needs a specialist placement. Mrs X says the emotional stress has impacted the whole family and the situation has been significantly detrimental to Y’s mental health. Mrs X told us she had to reduce her working hours which caused financial strain. Mrs X would like the Council to name a specialist setting in Y’s Education, Health and Care Plan.

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The Ombudsman’s role and powers

2. 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)
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 an injustice, 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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

7. I have not investigated Mrs X’s complaint the Council has named an unsuitable school in section I of Y’s Education, Health and Care Plan as this has a right to appeal at Tribunal.

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How I considered this complaint

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

Legal and administrative background

Education, health and care needs assessment

10. 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. 
11. The Children and Families Act 2014, part 36(8) sets out the two part legal test councils must follow when deciding whether to carry out an EHC needs assessment. It says councils must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted, the Council is of the view that –
1. The child or young person has or may have special educational needs, and
2. It may be necessary for special educational provision to be made for the child or young person in accordance with an EHC Plan.

Mediation

12. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.
13. If a parent requests mediation the Council has a duty to participate (Children and Families Act 2014, Section 54(2)).

Section 19 duty

14. 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.
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

What happened

16. Y began year 6 in September 2023. At the beginning of November 2023, the Council received a referral from Y’s school which set out Y’s difficulties in attending school. The Council’s records state the school had made all reasonable and expected adjustments however there had been little impact on Y’s ability to attend school and access education.
17. At the beginning of December 2023, a Council panel approved Y for alternative provision. The Council agreed to provide 6 hours of tuition per week. The Council has not provided evidence of how it considered this provision met its section 19 duty to provide access to suitable, full-time provision.
18. The tuition began in the second week of January 2024.
19. At the same time as submitting the referral for attendance difficulties in November 2023 the school also submitted an EHC needs assessment request. The Council responded to this request within 6 weeks and explained its decision was to refuse to carry out an assessment.
20. The Council’s letter explained it did not consider the school had provided the necessary evidence to:
1. Prove the school had taken relevant and purposeful action to help Y make expected progress.
2. Show Y would have significant difficulties in accessing the curriculum despite a high level of differentiation.
21. The letter goes on to say the Council did not have evidence that the two legal tests it must apply when considering whether to carry out an EHC needs assessment had been met.
22. After receiving the Council’s decision, Mrs X requested the Council engage in mediation. The Council failed to respond to this request within 30 days, so a mediation certificate was issued, and Mrs X submitted an appeal.
23. Following Mrs X’s appeal submission, the Council agreed to take part in a mediation meeting. At this meeting the Council’s original decision was overturned and it agreed to carry out an assessment of Y’s needs. The Council did not record the reason it overturned its original decision based on the same evidence it had received as part of the initial request.
24. The council should have completed the EHC needs assessment and issued the final EHC Plan within 14 weeks of the mediation meeting. This means the final Plan should have been issued in June 2024.
25. The Council did not issue Y’s final EHC Plan until the end of September 2024.

My findings

26. The Council agreed to provide access to alternative provision however it has not provided evidence of how the provision it provided met its duty to provide access to suitable, full-time education. Based on the evidence provided, we cannot say the provision provided by the Council was suitable or amounted to full-time education. This is fault which causes distress, uncertainty and frustration to Y and Mrs X during a key year of Y’s education.
27. The decision letter issued to explain the Council’s refusal to carry out an EHC needs assessment indicates the Council applied a higher legal test to its consideration of whether it should carry out an assessment of Y’s needs. The letter misleads the reader as to what the two legal tests are. This is fault which caused distress, frustration and uncertainty for Y and Mrs X.
28. The Council has not kept a detailed record of its initial consideration of the EHC needs assessment request or its reasoning for overturning the decision at mediation. Based on the information provided in the decision letter, the information recorded by the Council, and the fact the decision was overturned at mediation without additional evidence, it appears the Council applied a higher legal test to its consideration of whether to carry out an EHC needs assessment. This is fault which caused a significant delay to the EHC needs assessment process and delayed the deadline for the final Plan by three months.
29. The Council failed to respond to the initial request for a mediation meeting. This is fault which delayed the process and caused Mrs X distress, frustration and uncertainty.
30. There was a further three month delay in the Council issuing the final EHC Plan following the decision to assess. The total delay in the final EHC Plan being issued is six months. This is fault which caused Y and Mrs X distress, frustration and uncertainty.

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Action

31. The remedies recommended below consider the significance of these events taking place during Y’s time in year 6 which is a key transition year.
32. Within one month of the final decision the Council will:
• Apologise to Y and Mrs X for the faults identified. 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 its apology.
• Make a symbolic payment of £1300 to Mrs X. This is calculated as follows:
1. £500 for the 3-month delay caused by incorrect legal test, injustice caused by the misleading decision letter and the delay in arranging a mediation meeting.
2. £300 for the additional three-month delay in the final Plan being issued.
3. £250 for the distress, frustration and uncertainty caused by failure to consider suitability of s.19 provision.
4. £250 for the time and trouble Mrs X has spent pursuing her complaint.
33. Within three months of the final decision the council will:
• Complete staff training to ensure all its relevant staff are aware of the two-part legal test, set out in section 36(8) of the Children and Families Act 2014, which must be considered when the Council decides whether it should carry out an EHC needs assessment. This training should include details of how staff should record their consideration of the legal test and how to correctly explain the two part legal test when communicating with parents and young people.
• Where the Council uses template letters to explain refusal to assess decisions, this template should be amended to ensure it accurately reflects the two-part legal test which must be met for the Council to carry out a needs assessment.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I find fault causing injustice. The Council has agreed to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman