Summary: There was excessive delay by the Council in completing an EHC Plan and its own complaint process. There was also a failure to provide suitable fulltime education. This caused unnecessary distress, frustration, and loss of education. The Council will apologise, make a symbolic payment to acknowledge loss of education and carry out service improvements. The complaint is upheld.

The complaint

1. Ms X complains about the way the Council handled her child’s Education, Health and Care (EHC) Needs Assessment.
2. Ms X complains:
• There was delay issuing a draft EHC Plan.
• There was delay finalising the Plan and naming a school.
• The Council consulted schools without her permission.
• The Council failed to communicate with her and keep her updated.
• The Council failed to amend the EHC Plan after annual review.
• The Council failed to complete its internal complaint procedure. It said it did not have enough staff to investigate the complaint at stage two but took eleven months to tell her this.
• The Council said a shortage of educational psychologists was responsible for the delay in the EHC needs assessment, but an educational psychologist (EP) saw her child in school several times and there was continued delay after the EP’s involvement.
• The Council failed to attend Child in Need meetings.
3. Ms X says that because of the alleged fault:
• Her child was permanently excluded because the EHC Plan and support available via a Plan was not in place.
• Her child has not attended school for two years.
• Her child was not provided with suitable fulltime education.
• Her child’s absence from school has impacted her own ability to work and placed extra caring responsibilities on her.
• The Council’s actions have caused unnecessary distress, time and trouble.

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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 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
• 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)
• We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
• We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
• Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. 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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How I considered this complaint

8. I have considered information provided by Ms X and the Council including:
• Chronology of events prepared by the Council
• EHC Plan documents
• Child in Need documents
• Attendance and school records
• Complaint documents and correspondence.
9. I have considered relevant law and statutory guidance including:   
• The Education Act 1996
• The Children Act 1989
• The Children and Families Act 2014
• Statutory Guidance: Alternative Provision, 2013; Ensuring a good education for children who cannot attend school because of health needs, 2013; Working Together to Improve Attendance, 2022.

•     The Special Education and Disability Regulations 2014 (‘The Regulations’)

•     The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)

10. I have spoken to Ms X by telephone.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
12. 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

Relevant law and guidance

Child in Need

13. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare.
14. Where the council’s children’s social care decides to provide services, it should develop a multiagency child in need plan which sets out which organisations and agencies will provide which services to the child and family.
15. Under s.17 Children Act assessments are expected to be ‘holistic’ and take account of the needs of other family members. However, parent carers also have a right to a stand-alone assessment under the Children and Families Act 2014. This requires councils to assess parent carers on the assessment of need or when a parent requests assessment.

Special educational needs

16. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This 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 education or name a different school. Only the tribunal can do this.
17. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.
18. 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 Regulations. It says:

• Where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• The whole process from the point when an assessment is requested until the final EHC plan is issued must take no more than twenty weeks (unless certain specific circumstances apply); and
• Councils must give the child’s parent or the young person fifteen days to comment on a draft EHC plan.

19. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Plans must be reviewed at least annually. After a review the Council must decide whether to keep the Plan the same, amend it or cease it. All decisions carry a right of appeal.

Alternative education

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 that is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
21. Where absence is due to a physical or mental health need, schools are expected to manage the health needs so the child can continue to attend, and councils are not expected to become involved in arrangements unless they have reason to believe the education provided by the school is unsuitable. Where full-time education would not be in a child’s best interests for reasons relating to their physical or mental health, councils must arrange part-time education on whatever basis they consider to be in the child’s best interests.
22. Where absence is due to permanent exclusion councils must arrange suitable fulltime education from the sixth school day of exclusion. (The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007).
23. Statutory guidance: Working together to improve school attendance says that in very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable should not be used to manage a pupil’s behaviour.

24. Schools can put in place a temporary, time-limited part-time timetable where the parent and school both agree there are exceptional reasons why a pupil should temporarily be educated on a part-time basis. There should be a clear plan to return the child to fulltime education and the timetable should be regularly reviewed.

What happened

25. The following is a summary of key events. It does not include everything that happened.
26. The Council received a request to assess Ms X’s child for an EHC Plan in Summer 2021. It made the decision to assess within four weeks. The Council requested advice from professionals including an Educational Psychologist (EP).
27. The EP became involved in Autumn 2021 because there was a risk Ms X’s child could be permanently excluded due to behaviour related to their special educational needs. Ms X’s child started on a part-time timetable. My understanding is that the part-time timetable continued until Spring 2022, when Ms X’s child was permanently excluded.
28. Documents provided to me by the Council and Ms X show Ms X and the School agreed a first temporary part-time timetable of twenty-five hours per week with the reasons given as ‘behavioural’, and then a month later a second temporary timetable of twenty-five hours per week with the reasons given as ‘behavioural’ and ‘emotional’. Attendance data shows Ms X’s child was attending regularly but for slightly shorter days.
29. The second temporary timetable was due to be reviewed in the New Year. Evidence from the EP in early 2022 shows Ms X’s child was continuing to attend part-time three full days and two short days per week.
30. Social care was involved with the family (children in need). Child in Need meetings were held regularly throughout 2022. In Summer 2022 the school obtained funding from the Council for Ms X’s child to attend some off-site alternative provision (a forest school).
31. The Council decided an EHC Plan was required. The twenty-week deadline to issue a final EHC Plan was mid-Autumn 2021. The Council did not issue a final Plan until Summer 2022, thirty-three weeks late.
32. The Council says this was because EP advice of the detail required to write the EHC Plan was delayed until early 2022. The Council then issued a draft Plan.
33. Ms X told me the Council consulted three schools: her choice (School A) which offered a place in Spring 2022, School B and School C.
34. The Council issued the final Plan in Summer 2022 naming only a type of school, but then reissued the Plan shortly afterwards to name School C, with Ms X’s child to start there from September 2022.
35. Ms X did not agree School C was suitable and lodged an appeal with the SEND Tribunal. She did not send her child to School C while the appeal was pending. The Council consulted more schools in Winter 2022. Some alternative provision of forest school and mentoring was put in place in late 2022. In 2023 Ms X started to pay for some home tuition.
36. Ms X’s appeal was heard in September 2023. The Tribunal ordered the Council amend the final Plan to name one of the other schools the Council had consulted (School B) from September 2023. This was not Ms X’s choice of school.
37. Ms X says other changes required to the Plan were discussed at Tribunal but not ordered, for example the Plan does not include a recent diagnosis. Ms X told me she told the Tribunal about the diagnosis not being included.
38. Ms X has not sent her child to School B. Ms X requested a personal budget. She wanted the Council to pay for home tuition and mentoring. The Council said it was not required to fund provision in addition to that available at School B.
39. Ms X raised new complaints about an annual review held in Autumn 2023, about delay in the Council amending the Plan after review, and about the Council refusing to consider a personal budget.
40. Ms X complains her child has been out of school since Spring 2022 and remains without education. Ms X says this has affected her ability to work and affected her wellbeing and that of her child.
41. Ms X complained to the Council. It apologised for delay and for poor communication at times. It said it was taking actions to increase EP capacity. The Council explained its EHC staff did not have capacity to attend every child in need meeting where a child was undergoing EHC assessment but said this should not affect the outcome. Ms X was dissatisfied with the Council’s response and asked for her complaint to go to stage two of the Council’s process.
42. Eleven months later the Council told Ms X it could not investigate her complaint at stage two as it did not have enough complaints staff. It apologised and offered Ms X £250 to acknowledge the injustice this caused her. Ms X then brought her complaint to the Ombudsman.

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What I have and have not investigated

43. I have investigated the period from Autumn 2021 until Summer 2022 when the Council issued a final EHC Plan. While this is more than twelve months ago, the delay in bringing the complaint to the Ombudsman was due to the Council’s delay in complaint handling.
44. Ms X had a right of appeal about the final EHC Plan which she has used. As an alternative legal remedy has been used the Ombudsman has no discretion to investigate loss of education from Summer 2022 until the appeal was concluded.
45. The law says we cannot investigate a decision that has been appealed (the naming of a school) or the consequence of that decision. The consequence of the decision to name a school Ms X considered unsuitable was her child did not attend and did not receive an education. This is outside our jurisdiction because the absence from school is related to the suitability of the school, which is the same matter as the appeal considered.
46. The appeal was concluded just over a year after the final Plan was issued. The Tribunal named School B. Ms X has not taken up the place. The Ombudsman cannot question the decision of the Tribunal. The Tribunal has determined this school is suitable and it is available.
47. I will not consider complaints about the recent annual review. We cannot investigate complaints where the Council has not had an opportunity to consider the complaint. The Council has only investigated delay in the EHC needs assessment process. If new issues have arisen since Tribunal, Ms X would need to use the local complaints process first.

Analysis

48. There was a thirty-three week delay in issuing a final EHC Plan between Summer 2021 and Summer 2022. This was excessive delay and was fault.
49. The delay in issuing the EHC Plan also delayed Ms X’s right of appeal, but I note Ms X did not comply with the Tribunal decision when it was made.
50. I find the Council was aware a part-time timetable was in place as its EP was assigned to Ms X’s child’s case in Autumn 2021. It therefore had to decide whether it was satisfied the education provided by the school was appropriate, or whether it needed to intervene, for example by supplementing the education provided by the school under s.19 Education Act to bring the education up to fulltime.
51. The reduced timetable appears to have been to manage Ms X’s child’s behaviour related to their special educational needs, although there is also a suggestion of emotional needs. Ms X did initially agree the part-time timetable as a temporary measure. The evidence is that her child did attend school regularly, but shorter days, as part of this agreement. However, the part-time timetable should have been a short-term measure with a clear timeline to return to full-time education. This did not happen as the part-time timetable was extended twice.
52. The Council has accepted in response to my draft decision that a financial remedy to acknowledge loss of education is merited for the period from January 2022 when the part-time timetable continued, and it failed to consider whether s.19 education was required. The Council says it does not consider a payment is due for Autumn 2021 when Ms X agreed to her child attending daily, but finishing early. I agree that on the evidence provided it is unlikely, on the balance of probabilities, had the Council considered this situation at the time that it would have considered it necessary to intervene and provide alternative or additional education given the timetable allowed for daily attendance but just a slightly shorter day. The Council should have kept the part-time timetable under review and intervened when a return to full-time education was not achieved.
53. Ms X says had the EHC Plan not been delayed her child would have received the support they needed to remain in school and the permanent exclusion would not have happened. I cannot speculate on what the outcome for Ms X’s child would have been if the Plan had been issued on time, but the uncertainty as to whether the outcome would have been different is an injustice.
54. That Ms X’s child was only able to attend part-time and remained at risk of exclusion was a reason to have completed the EHC Plan as quickly as possible and no later than twenty weeks. It is difficult to understand why, given an EP was involved already, an EHC Plan or extra funding / support to school could not have been provided quickly, even if the Plan needed to be updated with more detailed evidence later. There is also evidence of continued delay after the EP advice was provided.
55. In Spring 2022, Ms X’s child was permanently excluded. The Council then had a legal duty to provide fulltime education from the sixth school day of exclusion. The Council’s failure to do so, or even to consider doing so, was fault. That the Council was carrying out an EHC needs assessment does not remove the s.19 duty in relation to a permanent exclusion.
56. I find Ms X’s child missed out on education due to the extended part-time timetable which continued into 2022, and received no education between Spring and Summer 2022. This is a significant injustice.
57. For the reasons given above I cannot consider any loss of education after the final EHC Plan was issued. Ms X’s child’s absence from education from that point related to the suitability of the school named in the EHC Plan, about which Ms X appealed.
58. It was not fault for the Council to consult schools Ms X did not consider were suitable or without her permission. The Council was entitled to make its own enquiries and decision about potential schools.
59. The Council has acknowledged delay and some gaps in communication and apologised.
60. There is no requirement for EHC staff to attend child in need meetings and I note the Council’s inclusion officer did attend. While the permanent exclusion was discussed at meetings, the group did not challenge the lack of s.19 education, for example why no academic tuition was in place. This was fault. The Council should have been aware of its s.19 duty to an excluded pupil.
61. Ms X has complained about the impact on her ability to work and on the family of having a child out of school for an extended period. Assessments of the needs of parent carers should be offered ‘on the appearance’ of need. The Council was unable to tell me whether Ms X had been offered a Parent Carer Needs Assessment to consider her own needs as a carer. However, it said it was happy to offer Ms X a carers assessment if she wanted one.
62. The Council took nearly a year to tell Ms X it did not have capacity to investigate her case at stage two. This was fault and caused unnecessary delay and frustration. The Council has apologised and offered £250 for the impact on Ms X of this delay. This payment is in line with our Guidance on Remedies.
63. I am aware Ms X has ongoing concerns about omissions from the EHC Plan in that a recent diagnosis was not included. The appeal documents show Ms X did not appeal the sections of the Plan describing needs and provision, only Section I (placement). Therefore, the Tribunal could not make changes to other sections. However, Ms X could have appealed these sections or asked the Tribunal to extend the appeal to cover them. Ms X also had the opportunity to raise this at a recent annual review. The Council tells me it will be issuing an amended plan following the review so Ms X will have an opportunity to request changes and a further right of appeal.

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Agreed action

Within four weeks of my final decision:

64. The Council will apologise to Ms X for the faults identified in this decision statement.
65. The Council will pay Ms X on behalf of her child £3600 for the loss of education in 2022. Our Guidance on Remedies recommends a symbolic payment for loss of education in the range of £900 to £2400 per term depending on whether the child has special educational needs, the amount of education provided, and whether the lost education can be remedied through additional provision going forwards. The recommended payment is calculated as:
• £1200 for Spring term 2022
• £2400 for Summer term 2022.
66. The Council will pay Ms X £500 for the impact of the fault on her. This includes the £250 payment for complaint delay the Council has already offered.

Within three months of my final decision:

67. The Council will review the situation regarding capacity of complaint officers to ensure it can comply with its own complaint policy. Where capacity problems exist, the Council should be open and transparent with members of the public at an early stage and keep them informed of timescales.
68. While I have identified problems with the Council’s handling of EHC plans and s.19 education, these events date back to 2021-22. The Ombudsman has made recommendations about EHC timescales and s.19 education on several occasions since the events in this complaint, so I do not consider there is a need for me to make further recommendations. Service improvements to address these issues should already have been implemented.
69. The Council should provide us with evidence it has complied with the above actions.

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Final decision

70. I have completed my investigation. There was excessive delay in completing an EHC Plan and in completing the local complaint process. There was also a failure to provide suitable fulltime education. This was fault and caused unnecessary distress, frustration and loss of education. I am satisfied the agreed actions set out above are a suitable remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman