Summary: Mrs X complains the Council delayed competing her son, F’s Education, Health and Care (EHC) needs assessment within statutory timescales. She also complains the Council failed to put appropriate alternative provision in place for F between December 2022 and May 2023 after he stopped attending school. The Council was at fault. It issued F’s EHC plan 25 weeks late and failed to consider whether alternative provision was appropriate between January and February 2023. March to May 2023 is outside our jurisdiction so I cannot provide a remedy for that period. The Council agreed to make payments to Mrs X to acknowledge the injustice caused.

The complaint

1. Mrs X complains the Council delayed competing her son, F’s Education, Health and Care (EHC) needs assessment within statutory timescales. This meant F’s final EHC plan was issued 25 weeks late.
2. Mrs X also complains the Council failed to put appropriate alternative provision in place for F between December 2022 and May 2023 after he stopped attending school.
3. Mrs X says the delay issuing the final EHC plan delayed her right of appeal to the SEND tribunal. She says F lost education for nearly five months which caused her and F distress and uncertainty.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
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. 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

8. I spoke to Mrs X about her complaint and considered information she provided.
9. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website.
10. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

11. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
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 Code is based on the Children and Families Act 2014 and the SEND 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 a child’s needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

13. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.

The SEND tribunal

14. 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.
15. Parents can appeal a council’s 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. We cannot direct changes to the sections about the child’s special educational needs, special educational provision, or name a different school. Only the tribunal can do this.
16. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
17. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we nor the tribunal can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

Alternative provision

18. 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.
19. 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))
20. 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))
21. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

What happened

22. Mrs X has a son, F who in 2022 attended a mainstream primary school (School A). F has a diagnosis of Autism Spectrum Disorder (ASD) and has anxiety about attending school which affected his attendance. In early 2022 F was placed on a reduced timetable and supported with home tutoring. Mrs X said this arrangement continued until November 2022 when School A stopped the funding for the home tutor. Prior to this School A said F’s attendance was at 80%.
23. In April 2022 Mrs X asked the Council to carry out an EHC needs assessment for F. In June 2022 Mrs X complained to the Council that it had failed to make a decision whether to carry out the assessment within the six week timeframe. The Council responded to Mrs X and apologised for the delay and confirmed it had now agreed to the EHC needs assessment. The Council informed Mrs X that F’s EHC needs assessment would likely be delayed due to a shortage of Educational Psychologists (EP) and a high number of requests for assessments.
24. In line with statutory timescales the Council should have made a decision about whether to issue F with an EHC plan by the start of August 2022. If that was the case the Council should then have issued F’s final EHC plan by 29 August 2022.
25. The Council obtained EP advice in October 2022 and issued a draft EHC plan in early November. Records show the Council consulted with School A, indicating the funding it would provide when it issued F’s plan. School A said it would not be able to meet F’s needs with the suggested funding. The Council said it agreed to increase the funding levels.
26. The Council’s SEND team met with School A and Mrs X in early December 2022 about proposed changes to the draft EHC plan. Records of the meeting show F was still finding it difficult attending school in the mornings but seemed settle once he was there. Mrs X wanted the Council to consult with other schools.
27. Records show F’s attendance dropped to 50% during December 2022 and he did not return to School A in January 2023. Records show School A provided the Council with information about provision it provided to F following our enquiry letter. This showed School A provided F with one hour a day, however he only attended twice in January and February.
28. In mid-January 2023 Mrs X chased the Council for an update on F’s EHC plan. A week later Mrs X chased again for an update and told the Council F had not attended School A following the Christmas break other than for one 20 minute session. She asked whether any alternative provision or additional funding could be put in place to help support F. The Council responded to Mrs X stating funding could only be put in place once the final EHC plan was issued. It advised Mrs X to discuss alternative provision with School A. Towards the end of February the Council spoke with the headteacher at School A suggesting it explore alternative provision.
29. Council records show it had noted Mrs X’s preference to have School B named in the EHC plan however it had not responded to a consultation. Mrs X asked the Council to issue F’s EHC plan without further delay.
30. The Council issued F’s final EHC plan at the end of February 2023 naming School A. Records show the Council provided School A with top up funding to ensure it could meet F’s needs. Mrs X appealed to the SEND tribunal about both the content of the EHC plan and the naming of School A.
31. Mrs X complained to the Council in March 2023. She complained about the Council’s decision to name School A in the final EHC plan which Mrs X says could not meet F’s needs.
32. The Council responded in early April 2023 stating that following consultation with School A an increase in funding was agreed which meant it could meet F’s needs along with the provision in the EHC plan. It did not uphold Mrs X’s complaint.
33. F remained out of school during March and April 2023 and did not attend. In May 2023 F was declared medically unfit for school by a community paediatrician.
34. Mrs X escalated her complaint to stage 2 of the complaints procedure. Mrs X remained unhappy that F was not receiving a suitable education and was unable to attend School A. She said the Council had not reconsulted with School A who cannot meet F’s needs. The Council said School A had received additional funding to meet F’s needs and therefore further consultation was not necessary. It was satisfied School A could provide F with an education in line with his EHC plan.
35. Mrs X remained unhappy and complained to us.
36. Since complaining to us School A wrote to the Council in June 2023 explaining it cannot meet F’s needs. Since being declared medically unfit for school F has been receiving an alternative provision package while the tribunal process is completed.

The Council’s response to us

37. The Council accepts delays in the EHC needs assessment process caused by delays in receiving advice and due to the capacity within the SEND assessment service to complete the work. The Council apologised and proposed a payment of £300 to Mrs X to acknowledge the injustice the delays caused.
38. The Council said it was unaware until January 2023 that there was a decline in F’s attendance at School A. It says it delegates responsibility for alternative provision under S19 to schools. The Council said it accepts however F did not receive full-time education between January and May 2023.

My findings

EHC needs assessment delays

39. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
40. After agreeing to carry out an EHC needs assessment, in line with statutory timescales the Council should have made a decision whether to issue an EHC plan by the end of July 2022 and then subsequently issued the final plan by the end of August 2022.
41. The EP report was not completed until June 2023 which was fault and caused a delay in the Council deciding whether to issue F with a plan. This service failure came about due to the Council being unable to recruit enough EPs to meet demand. This in turn had a knock-on effect which meant the Council did not issue the final EHC plan until February 2023. This was a delay of 25 weeks. I have taken the end of August 2022 as the start date for the injustice caused to Mrs X.
42. The delays have had an impact on both Mrs X and F. The fault above caused Mrs X distress and frustration and a delay in receiving her right of appeal to the SEND tribunal which she has now used, and on balance would have used sooner. The delays have caused distress, frustration and uncertainty to both F and Mrs X. I note the Council’s proposal however I have made a recommendation to acknowledge this injustice up to the point when the Council issued F’s final EHC plan in February 2023.
43. I am aware from other cases that the Council is actively recruiting EPs in its area to address the shortage and has an ongoing action plan to reduce delays in its SEND department. So, I have not made any further service improvement recommendations.

Alternative provision

44. F’s attendance at School A was at 80% until November 2022 and then dropped to 50% until he stopped attending at all from January 2023 onwards. The Council was not aware F had stopped attending School completely until the end of January 2023 when Mrs X informed it. It was aware F was not receiving or being offered a full-time education. At this point it was ultimately the Council’s duty to consider whether the arrangements in place were suitable. The Council did not make any enquiries, it did not seek medical evidence and it did not consider whether alternative provision was appropriate. That was fault and we acknowledge it has accepted it did not ensure F received a full time education between January and May 2023.
45. The Council issued F’s final EHC plan at the end of February 2023 naming School A. At that point Mrs X had a right of appeal to the SEND tribunal which she has used. Therefore, although F continued to be out of school without a full time education or suitable alternative provision between March and May 2023 we cannot provide a remedy for this period for the reasons explained in paragraphs 13 and 14. For this reason I have only made a recommendation to remedy the injustice caused for the period January to February 2023 when the Council was aware F was not receiving a full time education.

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Agreed action

46. Within one month of the final decision the Council agreed to take the following action:
1. Pay Mrs X £600 to acknowledge the distress, frustration and uncertainty caused to her and F 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 August 2022 until the date it issued the final plan in February 2022.
2. Pay Mrs X £800 to acknowledge F’s loss of full-time education between January and February 2023.
3. Remind staff in its SEND department that it is the Council’s responsibility, not the schools to make arrangements for the provision of suitable education for children not attending school for illness or other reasons if suitable arrangements have not been made.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman