Summary: Miss X complained about delays in the EHC needs assessment process for her child, Y. She also said the Council failed to provide Y with a suitable education when they were unable to attend school. We found delays in the Education, Health and Care needs assessment process, this was fault causing Miss X frustration and uncertainty. We did not find fault in the Council’s provision of suitable alternative education. The Council agreed to apologise and make a symbolic payment to remedy the injustice.

The complaint

1. Miss X complained about delays in the Education Health Care (EHC) needs assessment process for her child, Y.
2. Miss X also complained the Council failed to provide Y with suitable Alternative Provision (AP) when they were unable to attend school.
3. Miss X says the matter has caused her frustration, distress and uncertainty. She also says the faults have caused Y to lose out on education and social development with their peers.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to. 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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(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)

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What I have and have not investigated

6. I have investigated the Council’s actions relating to the Education, Health and Care (EHC) needs assessment process for Miss X’s child Y from January 2024.
7. I have investigated the Council’s actions in relation to its Section 19 duties of the Education Act 1996 from January 2024 to November 2024. The period the Council became aware of Y’s absence in school until its complaint response to Miss X.
8. I have not investigated any matters from 7 November 2024 onwards. I am aware that there have been further concerns raised by Miss X about the suitability of tutors and the stopping of online tutoring after this date. These matters would be subject of a new complaint. Miss X would need to raise this with the Council first before the Ombudsman could investigate.

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How I considered this complaint

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

Education Health and Care Plans

12. 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 council can do this.
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 following:
14. 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.
15. 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.
16. If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
17. If the council then goes on to issue an EHC Plan, 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 (unless certain specific circumstances apply)

Alternative Provision

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. 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)
20. 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))
21. 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)
22. The Government has issued statutory guidance which Councils must follow unless they have good reason. (Ensuring a good education for children who cannot attend school because of health needs, issued by the Department for Education in January 2013)
23. Government guidance says Councils must work closely with schools to identify children who need the Council to make alternative arrangements for their education. Councils must consider the individual circumstances of each particular child and be able to demonstrate how they made their decisions.
24. The Local Government Ombudsman has issued guidance to councils on how we expect them 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)
25. In reaching a decision on whether a child is medically or otherwise unable to attend school, we expect councils to act quickly and (where necessary) consult the relevant professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of their evidence. If a council decides that the school place remains available and assessable to the child after considering all relevant evidence, we would expect this to be clearly documented, and communicated promptly to the parents

What happened

Education Health Care Needs Assessment

26. In January 2024 an Education, Health and Care (EHC) needs assessment was requested for Y.
27. A month later the Council refused to assess Y. It said Y’s needs were being met by mainstream setting and it wanted to evaluate therapeutic intervention. It provided Miss X with her appeal rights; she did not appeal.
28. In late March 2024 after a ‘Way Forward Meeting’, the Council agreed to complete an EHC needs assessment for Y.
29. In October 2024 Miss X complained to the Council that the agreed EHC needs assessment had not been carried out for Y. It said the delay was caused by a shortage of Educational Psychologists.
30. I asked the Council about its actions and delay in the EHC needs assessment process for Y. The Council said professional advice has been sought and if a decision to issue is made, a draft is expected by the end of August 2025.

Alternative Provision

31. In 2023 Miss X’s child, Y, struggled to attend their last year of primary school for medical reasons.
32. In January a referral form was sent to the Council. It agreed Y met the threshold for Alternative Provision (AP) and up to 15 hours of AP were available to Y as full-time equivalent.
33. Y’s school told the Council it had sent work and messages from other children home for Y but they were rarely engaging with these for health reasons. At a subsequent meeting in February, it decided a very gradually introduced 1:1 tuition in the home should be provided for Y.
34. In early March a tutor was provided at 1 hour a day, once a week. The Council said this significantly reduced offer was to support Miss X’s wishes and to afford Y with the best opportunity to succeed. It said six-weekly reviews were put in place.
35. In May 2024, Miss X raised concerns regarding the suitability of the tutor, it was agreed a new tutor would be sought. A new tutor was provided in June 2024, with provision increased to 2 hours a day, once a week, at Miss X’s request.
36. Y was unable to start at secondary school in September 2024.
37. The Council said reviews of the tutoring remained positive until December 2024.

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Analysis

Delays in Y’s EHC needs assessment

38. The Council refused Y’s EHC assessment in February 2024, it provided Miss X with her appeal rights, she did not use these.
39. After seeing new evidence and holding a way forward meeting on 18 March 2024, the Council agreed to assess Y on the 25 March 2024. The whole process should have been completed within 14 weeks of this date. This means the Council should have decided whether to issue an EHC plan by the 3 June 2024 or issued a final plan by 1 July 2024, it did not.
40. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the require timeframes is fault. The Council has said it has taken longer than it should to complete the process due to a shortage of Educational Psychologists. This is service failure.
41. Having identified fault, I must consider whether this has caused Miss X and Y an injustice. The delay in completing the EHC needs assessment process has caused Miss X frustration and uncertainty. It is also delaying her right of appeal to the SEND tribunal. I found the Council should make a symbolic payment to recognise the frustration and uncertainty Miss X has experienced. Because the Council has not made a decision whether it will issue Y with an EHC Plan, I cannot say what, if any, special education Y has missed out on.
42. We can also make recommendations to ensure similar faults do not happen in the future. We have investigated other similar complaints recently related to the EHC needs assessment process and made recommendations. The Council produced an ‘action plan’ to address our concerns and has recently changed its procedures. I will not, therefore, make further recommendations relating to this matter.

Councils alternative provision duty

43. The law says, where a child of compulsory school age is missing education because of illness, medical or other reasons, councils have a duty to arrange suitable alternative provision for them. The Council had a duty to arrange suitable education for Y when it knew they were not attending school in January 2024.
44. During consideration of its alternative provision duties the Council advised Miss X that up to 15 hours of education a week was available to Y. It however determined, and as requested by Miss X, that initial provision of 1-2 hours would be in Y’s best interests. It is not for the Ombudsman to decide what or how much education Y could manage. This is a decision for the Council to make once it has considered all relevant evidence.
45. I do not consider there is evidence of fault by the Council relating to alternative provision for Y, it:
• responded and considered its alternative provision duties (Section 19) quickly during the period of investigation,
• liaised with and considered the evidence provided by Y’s school, other professionals and Miss X,
• considered Miss X’s wishes when formulating a plan of provision,
• has undertaken regular reviews, and
• changed provision and tutors where necessary to support Y’s needs and Miss X’s requests.
46. I found based in the evidence available, the Council properly considered its duty to provide a suitable education for Y. I do not consider there is fault in the way it made its decisions regarding Y’s alternative provision between January and November 2024.

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Agreed Action

47. The Council has agreed to apologise in writing to Miss X to acknowledge the injustice caused by the faults identified.

We publish guidance on remedies which sets out our expectations for how organisation should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

48. To remedy the injustice the Council caused to Miss X due to delays in the EHC needs assessment process, the Council as agreed to:

Pay Miss X £100 per month of delay in the statutory process, to be calculated as below:

• from the 3 June 2024 (10 weeks after agreement to assess) until it decides not to issue an EHC Plan for Y; or
• from the 1 July 2024 (14 weeks after agreement to assess) until it issues a final EHC Plan for Y.
1. The Council will calculate and pay the remedy to Miss X within one week of making the decision not to issue or sending her the final EHC Plan.
2. The Council will provide us with evidence it has complied with the above actions.

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Decision

51. I found fault causing injustice by delays in the EHC needs assessment process. I do not find fault relating to the Council’s Section 19 duties. The Council has agreed to the recommendations to remedy the injustice, it is on this basis that I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman