Summary: Ms X complained about the Council’s handling of her child’s Education, Health and Care plan. She complains the Council delayed issuing the final plan and did not provide suitable alternative education while her child was out of school from August 2021 to September 2022. Ms X also complained the Council incurred delays in its consideration of her complaint. We found some fault by the Council and the Council has agreed to provide a remedy to address the injustice caused.

The complaint

1. Ms X complained about the Council’s handling of her child’s Education, Health and Care plan. She complained the Council:
1. Delayed issuing the final Education, Health and Care plan;
2. Did not provide suitable alternative education while her child was out of school for the period August 2021 to September 2022, and
3. Incurred delays in its consideration of her complaint.
2. Ms X says the Council’s actions have caused avoidable stress and upset to her child and the family and have negatively impacted the family’s mental wellbeing. Ms X would like the Council to provide appropriate provision for her child and provide a financial remedy to recognise the loss of educational provision.

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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 law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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)
8. Under our information sharing agreement, we will share our decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

9. I have exercised discretion in investigating Ms X’s complaint back to March 2021 as this is when Ms X requested an Education, Health and Care needs assessment. This is relevant to the complaint that the Council delayed issuing the final Education, Health and Care plan.
10. I discussed the complaint with Ms X and considered the information she provided.
11. I made enquiries to the Council and considered the information it provided.
12. Ms X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Education, Health and Care plans

13. 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.
14. 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. Parents must consider mediation before deciding to appeal. 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.
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:

• 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 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

16. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Alternative educational provision

17. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
19. 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])
20. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.

Principles of good administrative practice

21. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes:
• Stating the criteria for decision making and giving reasons for decisions
• Keeping proper and appropriate records
• Explaining clearly the rationale for decisions and recording them

What happened

22. The amount of information provided as part of this investigation was considerable. In this decision statement, I have not made reference to every element of that information, but I have not ignored its significance. This chronology includes key events in this case and does not provide details of everything that happened.
23. Ms X’s child, who I will refer to as Y, has mental health and medical conditions. Ms X says Y had not been attending their mainstream school setting, School A, since about December 2020 as a result of their conditions and issues at school.
24. In March 2021, Ms X asked the Council to carry out an EHC needs assessment for Y.
25. In May 2021, the Council agreed to carry out the assessment.
26. In July 2021, the Council decided it would issue an EHC plan for Y. It issued a draft EHC plan on 29 July 2021. The Council recommended a placement in mainstream education for Y.
27. Ms X and her partner, Mr X, provided their comments on the draft EHC plan and asked the Council to make some amendments. Mr and Ms X said they believed mainstream education was not suitable for Y and provided comments from professionals to support their view.
28. The Council says it issued the final EHC plan on 13 August 2021.
29. Mr and Ms X say they did not receive the final plan at this time. They say the document they received on 13 August 2021 was titled “Final Draft” and was not dated.
30. Mr X sent two emails to the Council on 13 August 2021 acknowledging receipt of a document. In one email, he referred to the document as the final draft, and in the other, as the final EHCP. In both emails, Mr X said the Council had not made the amendments he and Ms X had requested.
31. The Council replied on 14 August 2021 and asked for clarification of the requested amendments. On 25 August 2021, the Council issued a “draft amended” EHC plan. The plan did not name an education setting for Y.
32. In September 2021, Mr X asked the Council for an update and asked if he and Ms X were supposed to be appealing the Council’s decision about mainstream education. He said at that time, Y had been attending School A “on and off”.
33. The Council replied and said it was consulting with schools and was waiting to hear if they could meet Y’s needs.
34. In October 2021, Mr X asked the Council to contact College B to see if it could meet Y’s needs. College B provides an alternative to mainstream schooling.
35. On 2 November 2021, Mr X told the Council he and Ms X had asked for a trial at College B. On the same day, the Council told Mr and Ms X it could not directly name College B on the EHC plan but said a school could commission it. The Council asked Mr and Ms X if Y would like some home tuition as an interim measure, until a placement was found.
36. Mr X replied on 5 November 2021 and said he and Ms X did not think home tuition would work for Y’s complicated needs.
37. Mr X contacted the Council on 9 November 2021. He said he and Ms X did not agree to name School A on the EHC plan because a mainstream setting did not suit Y’s needs. Mr X said the EHC plan was still not finalised, and Y was missing out on education.
38. The Council replied on 10 November 2021 and said it would explore some more mainstream schools to see if they could meet Y’s needs. The Council suggested the use of tutoring as an interim measure.
39. On 12 November 2021, the Council called Mr and Ms X to discuss school options and the appeals process. Mr X emailed the Council shortly after and asked it to put what they had discussed in writing, including “the bits about EHC plan not finalised with the named school so we don’t need to appeal yet”.

What happened next

40. Mr X told the Council on 18 November 2021 that Y had attended a trial week at College B and had expressed a wish to continue going there. Mr X asked for College B to be named in the EHC plan.
41. The Council told Mr X it could not name College B because it was not Ofsted registered. Mr X said College B was the only provision that worked for Y. He asked the Council to explain in writing the reasons it considered College B could not be named in the EHC plan. Mr X also said he understood there was a right of appeal once the EHC plan was finalised.
42. The Council told Mr and Ms X parental preference could not be made for College B because it did not fall within one of the groups of permitted schools as set out in the Code.
43. The Council held an online meeting with Mr and Ms X on 14 December 2021 to discuss College B.
44. Mr X emailed the Council on 19 December 2021 and asked for Education Other Than At School to be included in the EHC plan. He said he and Ms X had not accepted home tuition because it was unworkable for Y and would cause more issues. Mr X said they had not turned down home tuition, but that it was not suitable.
45. The Council continued to consult with schools in January 2022, including a mainstream school, School C, who had previously worked with College B.
46. Mr X emailed the Council in January 2022 and said it had not given any offers of provision or any workable alternatives. Mr X also said he had still not received the final dated EHC plan; he asked the Council to provide this straight away including the letter for their right of appeal. Mr X asked the Council to send a copy of the final EHC plan if it believed it had already sent it.
47. On 12 January 2022, the Council emailed Mr and Ms X and provided a final, dated EHC plan. It said it had forwarded an email sent in August 2021 with the final EHC plan that needed to be amended. The Council said it later sent a corrected version (the draft amended) and would look to get the amended plan finalised.
48. Mr X replied on the same day and said he and Ms X had not previously received the final or dated EHC plan before that date. He said the document provided to them in August 2021 was not dated and was called a draft. Mr X said the final EHC plan received on 12 January 2022 still contained the original errors and therefore could not be the final document.
49. Mr X emailed the Council several times in January 2022. He maintained he had only received the final, dated EHC plan in January 2022, and that the document received in August 2021 did not say “final” and was not dated. Mr X said the EHC plans he had seen contained errors.
50. The Council sent a further draft amended EHC plan on 4 February 2022. The plan did not name a placement for Y.
51. Mr X told the Council on 18 February 2022 that he and Ms X had contacted an alternative education provider, Provider D, but had not heard anything from them. Provider D was not open at this time as it was a new provider in the process of setting up. Provider D offers educational and well-being support for students missing from school because of bullying or other trauma. Mr X asked the Council to clarify if the EHC plan process was at draft or final stage.

Ms X’s complaint

52. Ms X complained to the Council on 22 February 2022. She said the Council had not issued a correct final EHC plan despite the process starting almost 12 months previously. She said the Council had made repeated mistakes and had not put any education in place. Ms X said she lost her job because there was nothing in place and her work could not continue without some certainty that things would improve in the near future. Ms X said the Council’s actions had impacted on Y’s mental health and wellbeing.
53. The Council acknowledged receipt of the complaint on 23 February 2022. On the same day, it asked Mr and Ms X if they were interested in an online provision from Provider D.
54. Mr X told the Council he and Ms X were concerned about Y being able to log on regularly to the online provision. They asked if some of Provider D’s expectations of Y may be relaxed.
55. The Council issued a further “final amended” EHC plan on 9 March 2022. The plan did not name a placement for Y.
56. In March 2022, School C told the Council it would consider commissioning College B to support Y.
57. On 14 March 2022, the Council provided its complaint response to Mr and Ms X. It said it issued the final EHC plan on 13 August 2021, but this was initially sent to a wrong email address and was subsequently sent to the correct one. The Council apologised for the error. The Council said it issued a further draft amended EHC plan on 25 August 2021 and said that Mr and Ms X agreed with the draft plan on 12 September 2021. The Council said it then should have issued the final EHC plan.
58. The Council said it had asked School A to retain Y on roll and for it to fund provision from College B. School A had not agreed to work with College B, but had retained Y on its roll. The Council said Provider D had confirmed it could meet Y’s needs but it could not commit to a start date as it was awaiting an Ofsted report. Provider D had however, offered an online education provision. The Council upheld Mr and Ms X’s complaint and said it had made errors with issuing the final EHC plan, and it had not named an education placement.
59. Mr and Ms X asked the Council if School C would commission College B until July 2022 and for Y to then attend Provider D from September 2022.
60. The Council consulted with College B regarding Mr and Ms X’s request but said College B would not agree to a temporary placement until July 2022. The Council said College B had told it Y had been attending a placement since January 2022, and that it was offering a placement until July 2023. However, the Council said College B told it that if Mr and Ms X wanted to pursue a placement with Provider D from September 2022, it would terminate the placement.
61. Mr X replied and said College B had told him it would make provision for Y until September 2022 providing there was proper support for the transition to another setting in September 2022.
62. The Council replied to Mr and Ms X and said if Y wished to continue at College B, it would potentially agree to this by having a mainstream school oversee it. The Council said this would be with no expectation that Y attended the mainstream school.
63. On 21 March 2023, Mr and Ms X provided further information to the Council regarding their complaint. They maintained they did not see a final EHC plan until 2022, and that the professional’s advice identified that a mainstream setting was not suitable for Y.
64. The Council replied on 31 March 2022. It said its records showed Mr and Ms X had received the final plan on 13 August 2021 although it did not contain some of their requested amendments. The Council apologised for the delays and errors regarding the issuing of the EHC plan.
65. The Council said Y had remained on roll at School A and the Council had offered tuition support following the issue of the EHC plan. The Council acknowledged Mr and Ms X considered this was not suitable. It said it was waiting to hear about costings from Provider D and from College B before it could make a final decision on placement.
66. Mr and Ms X replied to the Council shortly after stating their dissatisfaction with the Council’s response.
67. On 27 April 2022, the Council told Mr and Ms X of its decision regarding a placement for Y. It said Y was to remain on the roll of School A until July 2022, with the offer of tutoring, followed by a placement at Provider D from September 2022.
68. Mr and Ms X replied on the same day. They said they were devastated by the Council’s decision and requested information about how to appeal. They said tutoring at home, or an external venue was not a workable offer due to Y’s mental health and medical conditions. Mr and Ms X said they considered the Council had not offered a viable education until provision with Provider D was due to start in September 2022.
69. On 16 May 2022, the Council issued a final EHC plan naming School A until July 2022 and Provider D from September 2022.

What happened next

70. On 17 May 2022, Mr and Ms X asked the Council to confirm if it was still considering their complaint or if it had provided its final response.
71. On 13 May 2022, Mr and Ms X brought their complaint to us. Following enquiries with the Council, on 13 July 2022, we advised Mr and Ms X to escalate their complaint with the Council to stage two of its complaints procedure.
72. Mr and Ms X provided details of their dissatisfaction to the Council on 21 July 2022. The Council responded on the same day and said it would assess the information provided and decide how to proceed.
73. Mr and Ms X asked the Council for an update on 16 August 2022. On 18 August 2022, the Council told Mr and Ms X its stage two response would be delayed. It apologised for any frustration and inconvenience caused.
74. In September 2022, Y began their placement with Provider B and School A removed Y from their roll.
75. On 15 November 2022, Mr and Ms X brought the complaint back to us as they had not received a stage two response from the Council. We made enquiries to the Council and on 28 November 2022, the Council told us it had been in the process of assessing the complaint at stage two. The Council asked us to take over the investigation of the complaint as it believed its stage one response sufficiently outlined its position.

Analysis – issuing the final EHC plan

76. Ms X complains the Council delayed issuing the final EHC plan and took longer than the statutory 20 weeks to provide the final plan. The Council says it issued the final plan on 13 August 2021, within the statutory 20 weeks.
77. I have reviewed the considerable amount of information provided by the Council, including a large volume of email correspondence and the EHC plan documents.
78. Several of the plans, (including the draft and “final amended” plans) do not have dates; the Council says draft amended plans are always undated, and it is only the final and final amended plans that are dated.
79. As requested, and in response to our enquiries, the Council provided dates as part of the documents’ titles to enable clear identification. I consider the lack of dates on the documents themselves however, and the unclear naming of the documents may have caused confusion during the EHC plan process. For example, the document named “Version 2” said to be issued on 25 August 2021 is different to the document named “Version 2” said to be issued on 4 February 2022; although both documents are stated to be “Version 2”, one is named “Final Draft amended” and the other is named “Further draft amended”. The Council says it considers both documents should be named “Version 2” because the version numbers only change when it finalises the EHC plan. It says each plan had a dated accompanying letter which contained all the statutory information required.
80. I acknowledge councils amend such documents throughout the review process and therefore create different versions. But it is important for councils to keep a clear and traceable audit trail throughout the process. This is so parents can easily identify and understand any changes made to the plan. 
81. The Council’s record keeping regarding the amendments to the evolving EHC plan documents is not in line with the principles of good administrative practice. This is because the lack of dates and the confusing naming of the EHC plans indicates the Council did not keep proper and appropriate records. This is fault which caused confusion to Ms X during the EHC plan process. This is evidenced as Mr and Ms X requested clarification as to what stage of the process they were at.
82. I have seen Mr X’s email dated 13 August 2021, timed at 16:43; this is the email which the Council says demonstrates it sent the final EHC plan on that date. This is because Mr X refers to the “final” EHC plan in the email. I have also seen the document the Council says it issued at this time, dated 12 August 2021. However, the Council says the original emails were not saved to file.
83. I acknowledge the Council’s explanation. However, I have also seen a further email dated 13 August 2021, timed at 16:31 in which Mr X referred to the attached document as the “final draft”.
84. Mr X emailed the Council on 6 April 2022 and said “we never received a Final dated plan in 13 August 2021...at that time we received an EHCP showing ‘Final draft’, and it definitely wasn’t dated...all of a sudden in January we saw for the first time one dated as August and saying just Final...we never, ever saw this one before January 2022!”
85. The Council’s records refer to a telephone call from Mr X on 3 December 2021. The Council states Mr X asked the Council to finalise the plan so they could appeal the mainstream setting. I have seen several other emails sent by Mr and Ms X, after 13 August 2021, asking for the Council to finalise the plan.
86. Although I have seen the document titled “final” EHC plan dated 12 August 2021, it is more likely than not Ms X did not receive this document on 13 August 2021. This is because the email timed at 16:31 on 13 August 2021 specifically refers to the “final draft” document, as does the email dated 6 April 2022 when referring to the document received on 13 August 2021; the document which the Council says was issued on 13 August 2021 is titled “Final”, not “Final Draft”. Ms X says the document she received on 13 August 2021 was not dated, but the document the Council says it issued on 13 August 2021, is dated. There is therefore a discrepancy between the description of the document Ms X says she received on 13 August 2021 and the document the Council says it sent on that date.
87. It is unlikely Mr X would have called the Council on 3 December 2021 and emailed the Council on several occasions to ask it to finalise the plan, if the Council had already sent the final plan on 13 August 2021. It is clear from Mr and Ms X’s correspondence that they were waiting for the final plan as they stated they wanted to appeal to the tribunal. As a result, it is more likely than not the document issued on 13 August 2021 was not labelled as “final”, as this would have provided Mr and Ms X with the right of appeal.
88. I have seen no evidence the Council advised Ms X at the time of her requests for the final plan that it had already issued it. Therefore, given the above explanation, and the apparent confusion regarding the naming of the documents, on the balance of probabilities, the document received by Ms X on 13 August 2021 was not the final EHC plan. Therefore, it is more likely than not the Council did not issue the final EHC plan within the statutory 20 week timeframe, (by 15 August 2021). This is fault.
89. The injustice to Ms X is the stress caused by the delayed right of appeal to the tribunal. I acknowledge Ms X subsequently decided not to appeal, but the email correspondence to the Council repeatedly referred to her wish at that time to take this course of action. Ms X’s subsequent decision not to appeal does not diminish the stress she felt while waiting for the final EHC plan.

Ms X’s complaint about alternative provision

90. Ms X complains the Council did not provide suitable alternative education while Y was out of school, for the period August 2021 to September 2022.
91. The Council has provided an explanation of the steps it took to secure provision for the period in question. I have reviewed the information provided and consider this supports the Council’s explanation. It consulted with various educational settings and although it did not initially identify a placement able to meet Y’s needs, it sought alternatives such as home tutoring, online provision and educational support from Provider D.
92. The Council offered home tuition as an interim measure, while it pursued a more permanent placement, and the evidence indicates this offer remained open.
93. Whilst I acknowledge the reasons stated by Ms X for not accepting this offer and acknowledge Ms X says she was not turning down the offer but considered it to be unworkable, I must consider whether the Council adequately considered its duties under section 19 of the Education Act 1996.
94. As stated at paragraph 17, councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. The Council’s offer of home tuition, made on 2 November 2021, discharged its duty under section 19. Although Ms X provided the Council with advice from professionals, this stated that they considered mainstream education may not be suitable, and that Y should be taught in an environment where they feel safe. I have not seen evidence the professional’s advice provided to the Council stated home tutoring would be unsuitable. I acknowledge Ms X’s comments that the Council must also consider the parents’ and child’s views. However, the Council continued to seek alternative provision after Mr and Ms X said they considered home tuition was not suitable, indicating it considered Mr and Ms X’s view regarding this option. The Council offered home tutoring as an interim measure rather than as the primary provision, while it sought a permanent solution. As a result, I have found the Council is not at fault regarding this aspect of the complaint.

Delay in naming an educational setting in the EHC plan

95. The evidence shows the Council did not name an educational setting in a final EHC plan until 16 May 2022, despite receiving the request from Ms X on 29 March 2021. This is a period of 14 months. This is a considerable period of delay and I have found this to be fault. This caused an injustice to Ms X and Y by incurring avoidable stress as a result of the delay in naming the educational setting.

The Council’s complaint handling

96. The Council’s complaints policy says at stage one, the Council will provide a response within 10 working days. If this is not possible, the Council will send a holding reply explaining the reasons for the delay and an expected date of response.
97. At stage two, the policy says the Council may refer the complaint for further action, further investigation, or decide not to investigate further. The Council says it aims to conclude all stage two investigations within 20 working days, but if this is not possible, it will inform the complainant of progress.
98. Based on the above, there is delay in the Council’s consideration of Ms X’s complaint. Ms X chased the Council for a response at stage two and brought the complaint to us when it did not receive one. The Council then asked us to take over the investigation but did not communicate this to Ms X within 20 working days. I have found this to be fault.

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Agreed action

99. To address the injustice caused, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Ms X and Y for the fault identified. This should be in accordance with our revised guidance on remedies;
2. Make a payment of £700 for the benefit of Ms X and Y to recognise the avoidable stress caused by the delays identified;
3. Make an additional payment of £300 to Ms X to recognise the time and trouble taken in pursuing the complaint;
4. Remind staff of the requirement to adhere to the statutory timescales regarding the issue of EHC plans, and
5. Remind staff to keep clear and accurate records, in particular when making amendments to EHC plans, and
6. Remind staff to adhere to the Council’s complaints policy.
100. The Council should provide us with evidence it has complied with the above actions.

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Final decision

101. I have found fault by the Council and the Council has agreed to take the above action to resolve the complaint. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman