Summary: Mrs X complains the Council has failed to make Section 19 Alternative Provision for her son, Y, while he was unable to attend school. Mrs X also says the Council failed to issue his Education, Health and Care Plan within the statutory timescale. As a result, Mrs X says his education and welfare have suffered. We have found fault in the Council’s actions for failing to issue Y’s Education, Health and Care Plan within the statutory timescale. The Council has agreed to apologise to Mrs X and pay a financial remedy.

The complaint

1. Mrs X complains the Council has failed to make Section 19 Alternative Provision for her son, Y, while he was unable to attend school. Mrs X also says the Council failed to issue his Education, Health and Care Plan (EHC Plan) within the statutory timescale.
2. As a result, Mrs X says his education and welfare have suffered.

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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 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)
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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)
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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How I considered this complaint

7. I considered the information provided by Mrs X and discussed the complaint with her over the telephone.
8. I have also considered the information provided by the Council.
9. Both Mrs X and the Council were invited to comment on my draft decision. Any comments received have been considered before a final decision was issued.

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What I found

10. 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 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.
• 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

11. 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.
12. 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
13. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;
14. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.
    What happened
15. Mrs X emailed the Council in early June 2023 to ask for alternative provision for Y and explained he was not in school.
16. The Council replied to ask for details of Mrs Y’s son and which school he attended. The Council also told Mrs X the school usually applied for alternative provision if it was needed.
17. Mrs X sent a further email to the Council which gave it Y’s details and said the school did not think there was an issue.
18. Mrs X requested an Education, Health and Care Needs Assessment (EHCNA) in late June 2023.
19. Mrs X contacted the Council again in early July 2023 to ask for an update and said the school had told her Y was not entitled to individual funding, but it would request group funding for an Educational Psychologist (EP) type professional.
20. The Council responded to Mrs X the same day and said it spoke to the school. The school told the Council funding would be in place from September for Higher Needs and EP funding.
21. Mrs X sent a further email to the Council asking where she could go for help as she felt alternative provision should be in place for Y. The Council responded to say local authorities did have a duty to make suitable alternative education provision but in Y’s case the school had not authorised his absences. The Council explained in this instance it would not necessarily follow that the Council had to arrange alternative education.
22. The Council arranged a meeting along with the school and Mrs X in mid-July 2023. It was agreed the school would mark Y’s absences as authorised for the rest of the term if he did not attend school. The school would also discuss a reduced timetable with Mrs X and provide Y with work/homework.
23. The Council issued a decision in late July 2023 not to assess Y. Mrs X was unhappy with the decision and raised it with the Council.
24. The Council then changed its decision after contact with Mrs X and decided to assess Y in early January 2024.
25. Mrs X decided to Electively Home Educate (EHE) Y from mid-January 2024 due to the stress of attending school.
26. Mrs X complained to the Council in late March 2024 about the delay in issuing Y’s EHC Plan. Mrs X also said she was unhappy the Council had not sought Occupational Therapy (OT) or Speech and Language Therapy (SaLT) opinions. Mrs X also complained about the lack of alternative provision for Y.
27. The Council issued a response to Mrs X’s complaint in late April 2024 and accepted there were delays in issuing a decision on Y’s EHC Plan. It said there had been delays in gaining an EP opinion. The Council said it considered requests for SaLT and OT opinions but considered needs could be met through ordinary provision and virtual sessions.
28. Mrs X was unhappy with the Council’s stage one response and asked for the complaint to be escalated in early May 2024.
29. Mrs X chased the Council in mid-May 2024 as it had not undertaken any assessments for Y.
30. The Council responded to say there were delays with allocating an EP and it was waiting on SaLT assessments. The Council went on to say it felt the school could have addressed Y’s needs and it had been working with the school to encourage Y to return to school. The Council also said as Mrs X had chosen to home educate Y it had no responsibility to provide his educational provision.
31. The Council issued a draft EHC Plan in late June 2024. Mrs X told the Council she was unhappy with the draft plan.
32. The Council issued a stage two response to Mrs X’s complaint in early July 2024. The Council said there had been delays in issuing Y’s EHC Plan and a SaLT review could have been sought. The Council went on to say that alternative provision did not apply as the school had not classified Y’s absences as authorised. But it said it could have done more to work with the school and Mrs X.
33. Mrs X paid for a private SaLT review in September 2024 and the Council asked the NHS to review this shortly after.
34. The Council issued a Final EHC Plan in late September 2024.
35. I understand Mrs X was unhappy with the content of the EHC Plan and has appealed this to the Tribunal.

Analysis

Education, Health and Care Plans

36. Mrs X requested an EHCNA in late June 2023. The Council issued a decision not to assess in July 2023 within the required time scale.
37. The Council reconsidered its decision and told Mrs X it would complete an assessment of Y in January 2024.
38. The council initially said in early May 2024 it considered a request for OT and SaLT reports to be sought but decided Y’s needs could be met through ordinary provision and virtual sessions.
39. The Council reconsidered this and told Mrs X it was waiting on SaLT assessments in May 2024. The Council sent the SaLT report obtained by Mrs X to the NHS for consideration in September 2024.
40. Mrs X is unhappy the Council did not obtain professional advice in relation to SaLT and OT opinions. However, the Council did consider this and explained why it did not feel it was necessary. We cannot criticise the decision made by the Council’s.
41. The Council issued a draft plan in late June 2024. Mrs X told the Council she was unhappy with this the following day.
42. A final plan was issued in late September 2024.
43. There is a clear delay in issuing Y’s EHC Plan. The Council acknowledged it should have made a decision by late March 2024 about whether it would issue an EHC Plan for Y, and the plan should have been issued by early May 2024. This did not happen which is fault. This would have caused Mrs X distress and frustration.
44. Y’s final EHC Plan was not issued until late September 2024. This was a delay of around 21 weeks.
45. The ombudsman has recently made a service recommendation regarding reminding officers to issue EHC Plan’s within statutory timescales and as such I have not made any service recommendations in this case.

Alternative Provision

46. Mrs X contacted the Council to ask for alternative provision for Y in June 2023. The Council explained to Mrs X this was usually requested by the school.
47. The Council then arranged a meeting with Mrs X and the school in July 2023. The Council, school and Mrs X agreed to discuss a reduced timetable and work would be sent home for Y.
48. Where possible, a child’s health needs should be managed by the main school so that they can continue to be educated there with support. The Council worked with the school and Mrs X to try to do this.
49. If it becomes clear the main school can no longer support the child’s health needs and provide suitable education, the school should speak to the Council. In this case the school felt it could meet Y’s needs.
50. Mrs X decided to home educate Y in January 2024. Mrs X says she did this as she felt she had no other choice.
51. After this point the Council had no responsibility to provide Y’s educational provision.
52. The Council considered whether it had a duty to provide alternative provision by seeking information about what current education was in place, and whether further support was needed. It established that the school felt it could meet Y’s needs, and the Council, the School and Mrs X all agreed on a plan of support and education for Y. Therefore, the Council had no reason to believe it had a further alternative provision duty.

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Agreed action

53. Within one month of a final decision, the Council should:

• Apologise to Mrs X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £500 to recognise the distress caused by the delay in issuing Y’s EHC Plan. This is calculated at roughly £100 per month. The Council has already paid Mrs X £150 and has agreed to pay a further £350 in recognition of the distress caused.

54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have found fault in the actions of the Council for failing to issue Y’s EHC Plan within statutory timescales.

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Investigator's decision on behalf of the Ombudsman