Summary: Ms X complained the Council took too long to issue her son’s Education, Health and Care Plan and that communication from the Council was poor. We found fault because there was a significant delay issuing the plan which affected the education on offer to her son. Ms X suffered avoidable frustration and distress in getting the issues resolved and her son missed out on the education he should have received. The Council has agreed to apologise, make a payment to Ms X, issue reminders to relevant staff and consider reviewing some of its procedures.

The complaint

1. Ms X complains the Council took too long to issue her son, Y’s, Education, Health and Care Plan (EHC Plan) from when it agreed to assess him. She also complains of poor communication from the Council.
2. Ms X says the delay has caused Y to miss out on education he should have received. She also says this has caused the family distress, frustration and that she has incurred the expense of private tutoring to provide Y with education.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability (SEND)) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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(i), as amended)
7. 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.
8. 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

9. Paragraph four (above) applies to this complaint. I have exercised discretion to investigate Ms X’s complaint back to March 2022. The issues Ms X complains of linked to the EHC needs assessment process began at this time and it is reasonable to include this period in my investigation.
10. My investigation ends in May 2023 which is when Ms X brought her complaint to us.

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How I considered this complaint

11. I have considered all the information Ms X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
12. Ms X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

13. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
14. The EHC Plan is set out in sections. Section F of the plan is about the special educational provision needed by the child or the young person. Section I is about the name and/or type of educational placement set out in the plan.
15. The council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
16. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).

Timescales and process for EHC Plan assessment

17. 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;
• if the council decides not to conduct an EHC needs assessment, it must give the child’s parent or young person information about their right to appeal to the SEND Tribunal;
• 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; and
• 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).

Appeal rights

18. There is a right of appeal to the SEND Tribunal against a decision not to carry out an EHC needs assessment or reassessment. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Mediation

19. 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 SEND 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.

Alternative provision

General section 19 duty

20. 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 S19 or alternative education provision (AP).
21. 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)
22. 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))
23. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Available and accessible

24. The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 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)

Focus report

25. We have issued guidance on how we expect councils 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
26. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

What happened

27. I have set out below a summary of the key events. This is not meant to show everything that happened.
28. In December 2021, Ms X contacted the Council to ask for an EHC needs assessment (the assessment) to be done for Y. At that time, Y was in year 9 at a local secondary school, School A. Y has SEN and struggles with anxiety.

2022

29. At the beginning of January 2022, School A sent evidence to the Council as part of the process to decide if the Council would carry out the assessment. This showed Y was increasingly struggling to attend school due to his anxiety. His attendance was at this time below 80% for the academic year so far.
30. At the end of January 2022, the Council declined to carry out the assessment and advised Ms X of her appeal rights.
31. After mediation in mid-March 2022, at the end of the month, the Council overturned its decision and agreed to carry out the assessment on Y.
32. At the beginning of June 2022, the Council sent Ms X a letter to advise that it had received her request for the assessment. It said it would be making a decision within six weeks to decide if it would carry out the assessment on Y. This was despite already agreeing it at the end of March.
33. A few days later, Ms X complained to the Council. She was unhappy that it was taking the Council too long to get advice from an educational psychologist (EP) as part of the process for the assessment. Ms X was not aware the process had not yet started.
34. In mid-June 2022, the Council sent Ms X its formal notification letter to say that it was now beginning the assessment.
35. Also in mid-June 2022, the Council assessed evidence it had recently received from local mental health services. The Council decided that support for Y should continue to be offered by School A, which was in line with the recommendations from local mental health services. The Council’s view at this time was that School A was still suitable and accessible for Y.
36. Near the end of June 2022, the Council sent its stage one complaint response. The Council confirmed it had not yet begun the assessment for Y. It said it had not sent any notification to the EP (after March’s decision to assess) due to delays and capacity issues within the Council’s in-house service responsible for processing the assessment request. The Council apologised and shared improvements made to staffing and capacity within the service. It said the assessment would start immediately.
37. In this letter, the Council also discussed recent conversations between one of its EPs and Ms X to arrange an appointment to meet. Ms X had raised her concerns with the EP that School A had not physically seen Y for over eight months and that contact had mainly been by text message. The Council asked the EP team to speak to School A to clarify its duties with regard to young people not in school. It also advised Ms X she could use School A’s complaints process if she was unhappy with its actions.
38. At the end of June, the Council received the EP report needed for the assessment.
39. In mid-September 2022, Ms X again complained to the Council. She said that the Council had been too slow to send out a draft of Y’s EHC Plan.
40. At the beginning of October 2022, Ms X advised the Council that her son had been out of education for six months. She said she had been paying for private tuition during this time.
41. The Council responded to Ms X’s complaint a few days later. It confirmed she should have received Y’s final EHC Plan by the beginning of July 2022. The letter said all reports necessary for the EHC Plan had been received and that a draft plan would be with Ms X by the middle of the month. The Council again apologised for delays and re-iterated there had been staffing and capacity issues within its SEN service.
42. Towards the end of October 2022, the Council sent Ms X a copy of Y’s draft EHC Plan.
43. In November and December 2022 and early January 2023, Ms X continued to contact the Council expressing her unhappiness and asking when Y’s final EHC Plan would eventually be issued.

2023

44. In January 2023, Ms X again highlighted that Y was not attending school and that she had been paying for private tuition for him. Ms X advised the Council she was unhappy with the online education School A had organised for Y which was being delivered by a third-party provider as she said it was unsuitable for him. Ms X later said the AP did not involve any contact with teachers, so it was not a suitable alternative.
45. The Council agreed with Ms X to speak to School A to discuss the AP being delivered to Y.
46. The Council finalised Y’s EHC Plan in the second half of January 2023 but did not issue it at this time.
47. At the end of January 2023, one of the schools consulted as part of the EHC Plan process, School B, said it could admit Y from June or July of 2023.
48. At the beginning of February 2023, the Council confirmed to Ms X that it had spoken to School A about the AP for Y. School A’s opinion was that it met the legal requirements to provide education but agreed to discuss the situation with Ms X.
49. The Council organised a meeting to discuss a way forward. The Council, Ms X, School A and School B attended. School B agreed to organise ten hours of face-to-face tutoring for Y from April 2023 onwards.
50. Y’s EHC Plan was issued at the end of March 2023. It listed 53 entries in Section F, the provision that should be delivered to Y. It named School B from April 2023.
51. The Council sent its stage two complaint response to Ms X at the beginning of April 2023. In this letter, it said:
• it upheld the complaint about the time taken to complete the assessment for Y’s EHC Plan and provided further detail about the capacity and staffing issues the SEN department had encountered;
• there was a significant delay in issuing Y’s final EHC Plan when it had been finalised but did not explain the delay;
• it acknowledged the delays she had experienced in chasing and waiting for her stage two response to be issued; and
• it was offering Ms X £150 to reflect the time and trouble she had gone to in making her continued complaints to the Council.
52. Ms X brought her complaint to the Ombudsman in the second half of May 2023.

Analysis

Delay in the assessment and issuing the EHC Plan

53. Guidance states that the process for the assessment must be carried out in a timely manner and steps must be completed as soon as practicable.
54. After its decision to carry out the assessment at the end of March 2022, Y’s first final EHC Plan should have been issued 14 weeks later, by the beginning of July 2022. The Council took too long to complete the process. Although it was clear to try and explain some of the reasons behind the delay in finalising the EHC Plan, this was still fault. Later delay in issuing the plan after it had been written appears to have been an administrative error. This is also fault. Ms X experienced a total delay of nearly nine months to receive the finalised EHC Plan. This would have caused Ms X significant avoidable distress and frustration. It meant a delay in Ms X having a right to appeal the plan at tribunal. It also meant that Y lost out on the opportunity to access the detailed provision eventually set out in Section F of the plan whilst he waited for it to be written and finalised. I have made a recommendation below to remedy this injustice.
55. As part of a recent unrelated complaint, the Council has already agreed to update the Ombudsman on its progress against its plan to address its backlog of requests for EHC needs assessments. It also agreed to keep those waiting updated about the status of their cases. On this basis, I will not make any further recommendation to the Council about this aspect.

Alternative suitable education whilst not in school

56. In response to my enquiries, the Council acknowledged that from September 2022 to April 2023, there was “a lack of oversight in relation to Y’s access to suitable education.”
57. I agree. The Council had been aware since at least the middle of June 2022 that Y was unable to go to School A due to his anxiety around attending. Ms X had voiced her concerns several times that he was “not in education” and that she was paying for tutoring to fill the gap she felt there was in his education. Although it is unclear what level of AP School A had organised via the online third-party provider, it was clear that Ms X did not view this as a suitable alternative education for Y when he was unable to attend School A.
58. Whilst School A did later say it believed the AP on offer met its legal duties, there is no evidence to say the Council itself considered whether the AP was suitable to Y’s age, ability and aptitude, under its S19 duties. I am satisfied, that in the circumstances of this complaint, the Council should have taken much more decisive action to satisfy itself that what was on offer to Y was a suitable alternative education, equivalent to full time. This is fault. This will have caused avoidable distress and frustration to Ms X. On the balance of probabilities, and taking into account the Council’s comments, I am satisfied this meant Y was not given the opportunity to receive a suitable alternative education equivalent to full time during this period. I have made a recommendation below to remedy the injustice caused.

General communication and complaint handling

59. Ms X complained of poor communication from the Council. The Council has acknowledged it did not deal with her stage two escalation request appropriately. Evidence shows all of the other complaint responses were sent in a timely manner and within the Council’s published timescales.
60. There were, however, multiple occurrences of poor communication:
• agreeing to carry out the assessment but not beginning it and not advising Ms X it was subject to delay;
• confusion due to letters sent to say the Council was considering whether it would carry out the assessment when it had already agreed to do so over two months earlier;
• a lack of communication with Ms X after sending its stage one response and receiving the EP report in June 2022 until she complained to chase the Council again about what was happening in mid-September 2022 as she had still not had an EHC Plan;
• the Council advised Ms X she should receive the draft EHC Plan by the middle of October 2022, but did not then send this until the end of October 2022 or communicate the delay to her, despite Ms X’s complaint and the significant delay she had already experienced; and
• a significant delay registering, allocating and responding to multiple emails about ongoing concerns from late in November 2022 to the issue of the stage two response at the beginning of April 2023.
61. I am satisfied that despite many instances where the Council did respond in an appropriate and timely manner to Ms X, overall there was too much poor communication on the Council’s side leaving Ms X to do the chasing for answers. This is fault. Individual instances would have built up to create a bigger picture of avoidable frustration and distress which would have added to the distress of the delayed EHC needs assessment and issue of the final plan.
62. I note the Council’s offer (below) of £250 to recognise Ms X’s time and trouble in getting her complaints resolved. When the Ombudsman recommends a time and trouble payment, this is only linked to the Council’s identified complaint handling fault. I am satisfied this is a fair and proportionate remedy, as explained in paragraph 66, for the complaint handling issues.
63. In relation to the injustice Ms X suffered due to the general poor communication, I have made a recommendation below.

The Council’s suggested remedy offer to Ms X

64. In response to my enquiries, the Council revised its position stated in Ms X’s stage two complaint response. It increased its original offer of £150 up to £250 to recognise the time and trouble taken by Ms X to get her complaints responded to and resolved.
65. I am satisfied that the increase from £150 to £250 in recognition of its complaint handling failures is a fair and proportionate remedy, so do not intend to make any further payment recommendation on this point. The suggested payment is in line with the Ombudsman’s guidance on remedies.
66. The Council also suggested:
• £250 to reflect the avoidable uncertainty caused by the delay in Y’s EHC assessment and poor communication; and
• £3,000 for the period from September 2022 to April 2023 (two terms) to recognise there was a lack of oversight in Y’s access to suitable education. This is at £1,500 for each of the two terms during the period.
67. In terms of the other remedy suggestions made by the Council, I am not satisfied these reflect the injustice to Ms X and Y. I have therefore made recommendations below which are in line with the Ombudsman’s guidance on remedies.

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Agreed action

68. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Ms X and Y for the delay completing the assessment, the subsequent delay in issuing Y’s final EHC Plan, poor complaint handling, poor communication overall, for Y’s lost opportunity to access Section F provision from July 2022 to March 2023 and for failing to deliver a suitable alternative education equivalent to full time from September 2022 to April 2023;
• pay Ms X the suggested £250 to acknowledge the difficulties she experienced in getting her complaints resolved;
• pay Ms X £250 to recognise the distress arising from poor communication, the delay in carrying out the assessment and finalising Y’s EHC Plan;
• pay Ms X £5,100 to acknowledge Y’s lost opportunity to access specialist provision contained in his EHC Plan from July 2022 to March 2023. This payment is also to acknowledge that it did not provide Y with a suitable education equivalent to full time from September 2022 to April 2023. It is calculated at £300 for three weeks of lost opportunity to access Section F provision in July 2022 and £2,400 for each of the following two terms from September 2022 to April 2023 for lost opportunity to access Section F provision and lack of suitable AP;
• remind relevant officers and managers of the Council’s statutory duties under S19 of the Education Act 1996; and
• consider reviewing its policies and procedures to ensure it retains oversight and control for its S19 duties.
69. Payments made should be used to benefit Y’s education and are in line with the Ombudsman’s guidance on remedies.
70. The Council should provide us with evidence it has complied with the above actions.

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Final decision

71. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman