Summary: Mrs X complained the Council failed to follow the correct process for issuing her child’s Education, Health and Care Plan and failed to provide access to suitable, full-time education when her child was unable to attend school. We find the Council at fault for a delay in issuing the final Education, Health and Care Plan. This caused uncertainty and frustration for Mrs X. The Council has agreed to apologise and make a financial payment to remedy the injustice caused.

The complaint

1. Mrs X complained the Council failed to follow the statutory process and used inaccurate reports when issuing her child, B’s Education, Health and Care Plan Mrs X also complained the Council failed to provide access to suitable, full-time education when B was unable to attend school. Mrs X told us, as a result, B’s education and welfare, and the welfare of the family, have suffered. Mrs X would like the Council to take accountability, apologise for any faults, provide financial redress, improve its processes and provide more specialist school placements.

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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. 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.
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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(1), 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 not investigated the part of Mrs X’s complaint which relates to the content of B’s Education, Health and Care Plan and the content of the professional reports provided as part of the needs assessment. These issues have a right of appeal to the Tribunal which Mrs X used once the final Plan was issued.
8. 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)
9. 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.
10. Mrs X disagreed with the school named in section I of the final Education, Health and Care Plan which was issued in November 2024. Mrs X submitted an appeal to the Tribunal. For this reason, I have not investigated the Council’s actions in providing education or special educational provision after the final Plan was issued in November 2024.
11. I have investigated the Council’s actions in completing the Education, Health and Care needs assessment, its communication with Mrs X during the process and the Council’s consideration of its section 19 duty between October 2024 and November 2024.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. 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 Plans

14. 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. 
15. 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. 
• 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 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.
• If the council 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);  

16. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 

17. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child or young person’s social care needs. Where a child or young person is not previously known to social care this will require a new assessment to identify if there are social care needs which need to be included in the EHC Plan.  

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)
20. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

Council complaints policy

21. The Council complaints policy says it will acknowledge stage one complaints within five working days and issue a response within ten working days of acknowledgement.
22. Complainants can raise a stage two complaint if they are not satisfied with the Council’s stage one response.
23. At stage two of the Council’s complaint process the Council should acknowledge the complaint within five working days and issue a response within twenty working days of acknowledgement.
24. At both stages the Council should contact the complainant if it requires additional time to provide a response.

What happened

EHC needs assessment

25. The Council received a request for an assessment of B’s Education, Health and Care needs in May 2024. In accordance with the statutory timeframe, the Council should have completed the assessment and issued the final Plan no later than the end of September 2024.
26. The Council agreed to complete an assessment of B’s Education, Health and Care needs in July 2024. The Council wrote to Mrs X to inform her of its decision. The Council also wrote to the relevant professionals to request their input in the assessment. This included a request for an educational psychology assessment and input from social care.
27. The social care team provided a report at the beginning of September 2024. The social care team made recommendations for service referrals to support B and the family.
28. Mrs X disagreed with the outcome of the social care report. The Council offered a further social care assessment in December 2024, however this assessment was refused by the family.
29. There was a delay in the educational psychology assessment being completed. This caused a delay in the Council issuing B’s final EHC Plan. The Council received the educational psychology report in September 2024. The final Plan was issued in November 2024. Mrs X submitted an appeal to the SEND Tribunal in December 2024.
30. Mrs X requested an early annual review in November 2024. The Council considered this request but refused due to there being an ongoing appeal which was the correct route for Mrs X to challenge the content of the EHC Plan.

Section 19 duty

31. The Council was made aware B was not attending school in October 2024. B received a fixed term exclusion and the school agreed to a part-time timetable to support B’s access to education. Communication from Mrs X to the Council in November 2024 explained B’s parents kept B off school from October 2024 to take the pressure off school as they were unsure how to support B.
32. A GP letter issued in October said B was unable to attend school for medical reasons.
33. In October 2024, the Council referred B to an alternative provision provider on the grounds of medical need. The referral was refused as the letter from the GP did not meet the threshold for a referral.

Complaint handling and communication

34. Between May 2024 and November 2024 the Council remained in regular contact with Mrs X to update her on the progress of B’s EHC needs assessment.
35. Mrs X submitted a complaint to the Council at the beginning of November 2024.
36. The Council issued a stage one complaint in December 2024, approximately two weeks after the response deadline.
37. In line with the Council’s complaint policy, Mrs X escalated her complaint to stage two at the end of December 2024. The Council failed to provide a stage two complaint response. In response to our enquiries the Council told us it did not provide a stage two complaint response as the issues were being dealt with via the Tribunal process. I have not seen any evidence this was communicated to Mrs X.

My findings

38. There is no fault in the Council’s actions in requesting professional advice as part of the EHC needs assessment. The Council requested the relevant professional advice within the statutory timeframe.
39. There was an approximate 5 week delay in the Council issuing the final EHC Plan. This delay was caused by a delay in securing the educational psychology assessment. This is fault which caused Mrs X uncertainty and frustration.
40. There is no evidence of fault in the Council’s consideration of its section 19 duty between October and November 2024. A referral was made for alternative provision on medical grounds. The evidence was considered and did not meet the referral threshold.
41. There is no fault in the Council’s consideration of Mrs X’s request for an early annual review. The Council considered the request and explained why an early annual review was not the correct way to address Mrs X’s concerns with the EHC Plan.
42. There is no evidence of fault in the Council’s communication with Mrs X. The Council has remained in regular contact with Mrs X, kept her updated of progress and responded to her queries.
43. The Council failed to follow its complaint policy when dealing with Mrs X’s complaint. The Council delayed in issuing its stage one complaint response and it failed to issue a stage two complaint response. This is fault which has caused Mrs X frustration and uncertainty.

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Action

44. Within one month of the final decision the Council will:
• Apologise to 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 £200 in recognition of the injustice caused by the delay in issuing the final Education, Health and Care Plan and faults in complaint handling.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman