Summary: Mrs X complained the Council delayed in completing the education, health and care plan needs assessment for her son Y and that Y had been out of education since November 2022 and the Council had not responded to her complaints about the same. The Council failed to issue an education, health and care plan for Y in line with the statutory timescales, failed to ensure Y had a suitable education between December 2022, and March 2023 and failed to ensure Y received the provision in his plan between March 2023 and July 2023. The Council agreed to pay Mrs X £5,225 to recognise the impact of the faults identified.

The complaint

1. Mrs X complained the Council delayed completing the education, health and care plan needs assessment for her son Y and failed to take any action after it upheld her complaint about the same matter. Mrs X also complained that Y had been out of education since November 2022 and the Council has taken no action to provide him with alternative provision or respond to her complaint about the same. Mrs X said this caused Y significant trauma and impacted on her ability to work causing financial hardship.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

5. I read the documents Mrs X provided and discussed the complaint with her on the phone.
6. I considered the documents the Council sent in response to my enquiries.
7. I considered our Guidance on Remedies, which is available on our website.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

What I found

Relevant legislation and guidance

Education, Health and Care Plans

9. 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.
10. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of school. 
11. 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.
12. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• 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.

13. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).

Securing provision

14. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
15. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:

• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that the provision is not in place at any time.

Alternative provision

16. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
17. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that councils should provide the education as soon as it is clear the child will be away from school for 15 days or more, whether consecutive or cumulative.
18. 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))
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])

The Council’s alternative provision

20. The Council has an Access to Education (A2E) service. Its website states it provides a flexible, short-term, education service for children and young people who cannot attend school through exceptional circumstances. This could include medical reasons and permanent exclusions. It offers teaching, emotional, behavioural and social development work, mentoring and access to a virtual learning environment. The Council said referrals to A2E can be completed by:
• A school;
• The Schools Admission Team; and
• The Special Educational Needs and Disability (SEND) Team

What happened

21. Y is of primary school age and lives at home with his sibling and parents, Mr and Mrs X. Y has ADHD and ASD. In June 2022 Y was in year five and attending primary school A. Mrs X asked the Council to complete an assessment of Y’s special educational needs for an EHC plan on 9 June 2022.
22. The Council wrote to Mrs X in July 2022 and told her it would complete an assessment of Y’s education, health and care needs (EHCNA). It said it had begun gathering professional reports and the deadline for those was 29 August 2022.
23. Mrs X complained to the Council in October 2022. She said the Council had not told her if it would issue an EHC plan for Y in line with the statutory guidance as it had been 18 weeks since her request. She said provider L had Educational Psychologist (EP) assessment appointments available and the Council had used that service before.
24. The Council responded to Mrs X’s complaint in October and said there was a shortage of EPs which was delaying the assessment. It apologised for the stress this caused.
25. By the end of October 2022 Y had stopped attending school. In mid-November Y’s GP provided a fit note for one month that said Y was unable to attend school due to anxiety and ASD.
26. The Council said that its register check in the second half term (November to December) showed Y had been signed off by the GP with high anxiety from mid-November until the end of term and school A had authorised his absence on its register.
27. The Council began an early help assessment for Y and his family in December 2022. It recorded that school A had referred to the Council in November for support for the family with school attendance and mental health. It recorded Y was not attending school.
28. Mrs X told the caseworker that Y was not attending school via email at the beginning of January 2023.
29. Mrs X contacted the Council and asked it to consider her complaint at stage two in January 2023. She said it had been 32 weeks since the Council agreed to assess Y’s needs, and he was out of school with no alternative provision.
30. School A made a referral to A2E for Y at the end of January 2023.
31. The Council responded to Mrs X’s complaint in February 2023 and said it had not adhered to the statutory timescale and it would shortly make its decision on the EHCNA.
32. The Council said it received the EP report at the end of January and decided to issue an EHC plan for Y in mid-February.
33. The Council said it contacted school A at the end of February 2023 about the provision in place for Y. School A told the Council it had referred to A2E but had not had a response. It had not organised any alternative provision as the GP had signed Y off school and it did not know if he was well enough.
34. The Council responded to Mrs X’s complaint about lack of education in February 2023. It said it was not aware that Y was out of school. It said it asked school A to refer Y to its A2E team, which it had done but it was completed incorrectly so the Council declined it. The Council told me it did not progress this referral as it was arranging other alternative provision.
35. The Council issued an EHC plan for Y on 24 March 2023. It named school A until July 2023, and a type of school as a secondary mainstream from September 2023 onwards.
36. Mrs X, dissatisfied with the Council’s response, complained to us in March 2023.
37. The Council’s decided at the end of April 2023 it did not have capacity to support Y through its A2E service and it should consider an alternative provision.
38. The Council said it contacted school A again at the end of May about the provision for Y. The Council said school A reported Mrs X would not engage with the school and had not asked for alternative provision. It would provide provision if Mrs X would bring Y to school.
39. Y’s GP provided fit notes covering a month at a time from 25 November 2022 until 20 July 2023 specifying Y was unable to attend school due to anxiety and ASD.
40. Mrs X said that while Y was not attending school he was at home with her, which meant that she was unable to work full time and had to take Y to work with her. She stated this caused them both distress. Mrs X stated that she arranged a number of activities for Y to attend during the time he was not in school which she paid for herself.

My findings

EHC Plan delay

41. Mrs X requested an EHCNA for Y on 9 June 2022. The Council agreed to complete that assessment. It should have completed the assessment and issued the subsequent EHC plan within 20 weeks of the request and by 27 October 2022. The Council did not issue the EHC plan until 24 March 2023, which is a delay of 17 weeks and is fault. It caused Mrs X frustration and uncertainty.
42. The Council said the delay was caused by a shortage of Educational Psychologist. Mrs X made the Council aware of available EP assessment appointments in October 2022, there is no evidence the Council considered these appointments, which could have reduced the 17-week delay.

Alternative provision

43. Y stopped attending school A in October 2022 and had a medical certificate from mid-November 2023 until the end of the school year in July 2023 stating his absence was due to anxiety and ASD.
44. The Council told Mrs X in February 2023 it was not aware of Y absence from school. However, the records show the Council was aware in December at the half term 2 register check and when it started an early help assessment, and in January 2023 when Mrs X told the case worker by email.
45. The Council should have considered Y’s health needs in December 2022 and decided whether he was able to attend school or needed an alternative provision. If the Council had decided Y was fit to attend school it should have taken action in relation to his attendance. There is no evidence the Council considered the medical evidence but relied on school A’s decision to authorise Y’s absence. That was fault as the law states it is for the Council to decide if the child’s health prevents them attending school. It leaves uncertainty about what action the Council would have taken had it acted without fault.
46. As the Council relied on the school’s decision Y was unfit to attend it should have considered whether to provide Y with an alternative provision in December. School A told the Council in February 2023 there was no provision in place for Y. The Council did not take any substantive action and that was fault. The fault meant Y was without education for a term. It also caused Mrs X distress as she was unable to work full time while Y was not at school and had to arrange and pay for activities for Y.

Specialist provision

47. In March 2023 the Council issued an EHC plan for Y that named school A. At that time it was aware Y was not attending and had a fit note from his GP stating he was unfit to attend due to anxiety and ASD. The Council had a duty to secure the provision in Y’s EHC plan. It should have taken action to check the provision was in place, and to consider the medical evidence about Y’s attendance there. School A informed the Council in May 2023 that Y was not attending and it had not offered any other provision. The Council took no further action to ensure Y received the provision in his EHC plan. The Council’s lack of action was fault and meant Y was without the specialist provision in his plan for a term between March and July 2023. It also caused Mrs X distress as she was unable to work full time while Y was not at school and had to arrange and pay for activities for Y.

Complaint

48. The Council responded to all of Mrs X’s complaints within a month. There was no fault in the timeliness of the Council’s complaint handling. I have considered the accuracy of its complaint handling, and appropriate remedies for the injustice caused by the faults it identified within this decision statement.

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Agreed action

49. Within one month of this decision the Council will:
• write to Mrs X and apologise for the injustice caused to her and Y by the Council’s faults;
• pay Mrs X £425 to acknowledge the distress, frustration and uncertainty caused to her and Y by the Council’s failure to issue his final EHC plan in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan in October 2022 until it issued the final plan in March 2023;
• pay Mrs X £2,400 to recognise the term between December 2022 and March 2023 when Y did not receive any education, and a further £2,400 to recognise the term between March 2023 and July 2023 when Y did not receive the provision in his plan. Mrs X can use this for Y’s educational benefit as she sees fit.
50. Within two months the Council will remind relevant staff:
• that it is the Council’s responsibility to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence; and
• to make arrangements for the provision of suitable education at school or otherwise for children who, by reason of illness, may not for any period receive suitable education unless such arrangements are made for them.
51. The Council will provide us with evidence it has complied with the above actions.

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Final decision

52. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman