Summary: Miss B complained that the Council, in respect of her son C, had delayed in issuing a final EHC Plan following an assessment and failed to put adequate alternative provision in place. We found fault in the actions of the Council. The Council has agreed to apologise to Miss B and C and make symbolic payments to them.

The complaint

1. Miss B complained that Lancashire County Council (the Council) in respect of her son, C:
• delayed in completing the Education, Health and Care (EHC) needs assessment;
• delayed in issuing draft and final EHC plans;
• failed to find a suitable placement for C;
• failed to provide him with a suitable full-time education since September 2023; and
• failed to communicate effectively or promptly with Miss B.
2. This has caused C to miss out on essential education at a key period (GCSEs) and Miss B significant distress and time and trouble chasing the Council.

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The Ombudsman’s role and powers

3. 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)
4. 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.
5. 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)
6. 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)

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What I have and have not investigated

7. I have investigated the period from September 2023 (when Miss B requested an EHC needs assessment) to 7 November 2024 (when the final EHC Plan was issued along with a right of appeal to the tribunal).

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How I considered this complaint

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

Special educational needs

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. 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. 

EHC needs assessment

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 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).

Alternative provision

13. 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.
14. 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)
15. 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)

Right of appeal

16. 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)
17. 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.
18. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
19. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

What happened

20. On 14 September 2023 Miss B asked the Council to carry out an EHC needs assessment. At this point C was receiving five hours a week of education in school (an hour after school each day). The Council acknowledged the request. It decided on 25 October 2023 that it would carry out the assessment and requested advice from social care.
21. On 20 December 2023 the Council agreed to issue an EHC Plan.
22. In early February 2024 Miss B chased the Council for an update. She said C was only receiving three hours of education a week. The Council said it hoped to send out a draft EHC Plan within six weeks.
23. In early May 2024 Miss B contacted the Council to ask when the draft EHC Plan would be ready and to say that C was no longer allowed into school.
24. The Council sent Miss B the draft EHC Plan on 16 May 2024. Miss B attended a co-production meeting with the Council to discuss the draft plan. She requested a specialist school placement for C. The Council said it was considering a mainstream option. C was now receiving six hours of tuition spread over three days a week at the local library and two sessions at a different placement on the other two days.
25. In June 2024 the Council agreed to change the placement type to specialist and consulted two possible schools. Both declined to offer a place. The Council consulted with six more schools in early July. They all declined to offer a place. Miss B asked for the reasons for refusal. The Council responded saying that it was a mix of not being able to meet needs and no places available. In terms of C’s education, the Council suggested she talk to an advice service about what the school was putting in place as he was still on the school roll.
26. In September 2024 one of the schools said it could offer C a place. Miss B and C were very positive about the school. On 19 September 2024 the Council deferred a formal decision on the placement while it carried out an audit of the school. Miss B said C was not getting any tuition.
27. In early October the Council confirmed that it could not proceed with a place at the school, as it was not yet ready to accept children. It said it was carrying out further consultations with other schools and would take the case to the education other than at school (EOTAS) forum as C was only receiving four hours of tuition a week.
28. Miss B complained to the Council on 10 November 2024. She said she had still not received a final EHC Plan and C was still out of school, receiving only two hours a week of education. The Council sent the final EHC Plan to Miss B on 7 November 2024 naming C’s current school.
29. The Council responded to her complaint on 26 November 2024. It apologised for the delay in finalising the EHC Plan. It said it had been unable to find a placement for C and two hours a week of education was not ideal in the run-up to his GCSEs. It apologised for the poor communication which it said was due to an increased workload. It was working on improvements and increasing staffing levels.
30. Miss B escalated her complaint to stage two of the Council’s procedure in early January 2025. She said C was only receiving 3 hours a week of education through his current school.
31. The Council replied on 20 January 2025. It apologised for the delay and for the retraction of the school place in October 2024. It confirmed that it had been unable to place any children there. It said C was receiving 4.5 hours of tuition per week plus two days of alternative education provided through his current school. It said Miss B had a right of appeal against the placement named in Section I of the EHC Plan and so did not uphold her complaint about the lack of a placement. It did uphold her complaint about poor communication with the SEND inclusion team.
32. Miss B complained to us in March 2025.
33. In response to my enquiries the Council said it considered the education it offered during the period of assessment was suitable and accessible for him. It was only intended to be temporary until a suitable placement could be found.
34. The Council accepted it had significantly delayed in issuing the final EHC Plan. It explained this delay was due to capacity challenges within the Inclusion Team combined with an unprecedented increase in demand for EHC plans. It said it is actively addressing these issues through its SEND Transformation and Improvement Programme. This programme includes measures to strengthen workforce capacity, improve operational processes, and ensure statutory timescales are met consistently going forward.

Findings

Delay

35. The Council should have issued the draft EHC Plan by 2 January 2024 and the final EHC Plan by 1 February 2024. However, it did not issue the draft plan until 8 May 2024 and the final until 7 November 2024, nine months late. This was fault which caused C to miss out on essential educational support during a key period and caused Miss B significant distress and frustration chasing up the Council.
36. The Council has admitted it has not been able to find a suitable alternative placement for C and so has named his current school. Miss B had a right of appeal against this decision when the final EHC Plan was issued and so I cannot investigate this matter further.

Alternative provision

37. On the evidence provided C was receiving five hours a week of education after school for the winter term of 2023. In February 2024 he was only receiving three hours a week of tuition. In May 2024 this had increased to six hours with two sessions at a different provision per week. Between September and November 2024, C was receiving between two and four hours per week. I have not investigated beyond 7 November 2024 as this is when Miss B’s right of appeal against the EHC Plan (including the named placement) arose.
38. This was much less than full-time provision. The Council said in its response to my enquiries that it considered C was unable to access full-time education and that after the reduced timetable was tried in school, it arranged for six hours of tuition to be provided. It has not provided start date for this. As it is mentioned in the documentation in mid-May 2024, I have taken this as the start date.
39. There is no contemporaneous evidence of when or how the Council assessed C’s ability to cope with full-time education or what alternative provision could be put in place. In June 2024 the Council advised Miss B to seek independent advice about what the school could provide as C was on the roll there. This was incorrect advice as it was the Council’s responsibility to provide education while C was unable to attend school. If Miss B was saying the current provision was insufficient for C, then the Council had a duty to reconsider the provision and C’s abilities, to decide if something additional should be put in place. There is no evidence it did so.
40. By September 2024 the tuition had reduced to only two hours a week and the Council accepted in its complaint response that this was inadequate. There is no evidence that the Council considered the adequacy of this provision at the time.
41. I have concluded that the Council was at fault between September 2023 and May 2024 and September to November 2024 for not considering the suitability and accessibility of the alternative provision for C, which was at a very low level. Between May and July 2024, although the provision increased to some education on every day of the week, the Council was also at fault for failing to consider if this provision was sufficient, particularly when Miss B raised concerns.
42. This fault created significant uncertainty and distress for C and Miss B as to whether more education could have been put in place to assist at this key period in C’s education.

Communication

43. The Council accepted its communication with Miss B was sporadic and inconsistent. I agree this was fault which caused Miss B significant frustration and inconvenience in chasing up the Council.

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Action

44. In recognition of the injustice cause to Miss B and C, I recommended the Council within one month of the date of my final decision:
• apologises to Miss B and C;
• pays Miss B, for the benefit of C, £1500; and
• pays Miss B £750.
45. The Council has agreed to the recommendations and should provide us with evidence it has complied with the above actions.
46. As the Council has a transformation plan in progress to improve its SEND service, I have not made any additional service recommendations.

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Decision

47. 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