Summary: There was fault by the Council. It has failed to issue a final EHC Plan when the deadline to do so was May 2023. It has failed to ensure that a suitable education was available to Ms B’s son when he was too ill to attend school. The Council also did not always respond to Ms B’s contact or keep her informed of its actions. The Council’s shortcomings caused Ms B and her son distress and frustration. It also meant that K did not have access to suitable education for two terms of his final year of school. The Council has agreed to remedy the injustice to Ms B and K.

The complaint

1. Ms B complains about how the Council dealt with her son’s education. In particular she says the Council:
• Took too long to assess her son for an Education Health and Care (EHC) Plan and has failed to issue a Plan.
• Has failed to ensure that her son had access to a suitable education, when he was unable to attend the school due to illness.
• Failed to communicate with her about this properly. It has left her emails unanswered and took too long to respond to Ms B’s complaints.
2. Ms B says the Council’s actions have caused her and her family distress and significant frustration. It has also put her to time and trouble and restricted her ability to seek paid work.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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)
5. 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 have and have not investigated

6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
8. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
9. Ms B appealed to the Tribunal when the Council decided not to assess her son for an EHC Plan. This means that I cannot look at how the Council reached that decision, nor non-attendance at school if it is linked to the appeal. Ms B’s appeal right arose in November 2022 and the Council conceded the appeal in January 2023.

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How I considered this complaint

10. I considered the information provided by Ms B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered all comments received before issuing this final statement.

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What I found

The law and guidance

The EHC Plan process and timescales

11. A child or young person with special educational needs may have an EHC Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
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 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
13. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent, or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

Alternative provision for children not in school

14. 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.
15. This applies to all children of compulsory school age living in the local council area, whether they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
16. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
17. 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
18. 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;

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.

19. The Council’s alternative provision policy says it provides an out of school tuition service. The child remains on the school’s roll and the responsibility of the school. The school must notify the Council of the absence and referral to the service and it must hold review meetings every 12 weeks.
20. The Council’s policy also says the Council will monitor the effectiveness of provision for children who are unable to attend school due to medical reasons .

What happened

The EHC Plan process

21. In August 2022, Ms B applied for an EHC needs assessment for her child, K. The Council made the decision not to assess K in October 2023. The Council received some further evidence about K’s needs. It reviewed its decision, but again the Council decided that it would not assess K for an EHC Plan. It formally notified Ms B of its decision in November 2022, and she appealed to the Tribunal. The Council conceded the appeal at the beginning of January 2023 and it notified the Tribunal of this. The Council then had four weeks to complete the assessment and 16 weeks to issue the final EHC Plan if it decides one is needed.
22. The Council sought information on K’s educational, health and social care needs later that month. The Council had to get an assessment from an Educational Psychologist (EP). There is a national shortage of EPs and the Council did not receive the EP’s assessment until mid-May.
23. In the meantime, Ms B complained to the Council about the delay. The Council upheld Ms B’s complaint. It said it had taken too long to decide not to assess K when Ms B first requested this in August 2022. The Council apologised for the delay. It said that a final plan was due to Ms B within 20 weeks of it conceding the appeal, and as it was still within this time the Council was progressing with the assessment. The Council added that there was an unprecedented demand for EHC Plan assessments and it had recruited additional staff to address delays.
24. On 24 May, Ms B asked the Council to consider her complaint at stage two of its process. She said she wanted further investigation because while the Council had apologised, it had not actually resolved the issue, progressed the assessment, nor replied to her contact about the likely timescales for this. She reminded the Council that while it had 20 weeks to issue the final Plan, the law says it should complete the assessment within four weeks, and that it would still have to issue a draft Plan before it could issue a final. Ms B added that the Council had failed to keep telephone appointments nor take account that K was in a key transition year to post-16 education. The Council had also given incorrect information to the Child and Adolescent Mental Health Team dealing with K, and Ms B had to spend time telephoning its various officers to make sure it understood what was happening.
25. Towards the end of June, Ms B chased the Council both for the outcome of the assessment and for a response to her complaint. Ms B reminded the Council that K was in a key transition year, and would soon leave school. K’s school had funded some 1-to-1 tuition. Ms B asked the Council to consider funding the same through the summer holidays to help K catch up.
26. The Council responded to Ms B’s complaint on 6 July. It apologised for the delay in completing the assessment. It said this was due to a shortage of educational psychologists. It said it would issue the draft EHC Plan during the week beginning the 31 July.
27. On 25 August, Ms B contacted the Council. She had not received the draft EHC Plan nor had any contact about this. This meant that K did not know what post-16 education he would be getting. The Council referred Ms B to the Ombudsman.
28. The Council issued the draft EHC Plan on 30 August. Ms B asked for more time to comment on the draft and agreed an extension of a month with the Council, so that she should reply by 6 October. This was because by this time K had left school and would be starting an apprenticeship with college, and the draft EHC Plan did not fit the changed circumstances. The Council did not respond to Ms B’s request
29. The Council’s notes show that it consulted the college in October but did not issue the final EHC Plan. The Council did not contact Ms B to keep her informed about what was happening with the Plan.
30. In the meantime, K had started an apprenticeship which included some time at college.
31. The Council has confirmed that it has implemented new processes in its special educational needs and disability service in response to the increase demand for EHC needs assessments. During this time, the Council put in place to manage communication with officers and this included that parents could not contact individual officers direct but contact could be made via a central email inbox. The Council says that it should allocate an officer once the Council has completed the assessment and decided to go ahead with an EHC Plan. In K’s case, it made this decision at the beginning of August 2023, but an individual officer did not contact Ms B until the beginning of January 2024, and she still does not have a named officer or direct email address.
32. The Council has explained that it is preparing to implement a full redesign of the service. It has already reorganised some parts of the service so teams are assigned to the various parts of the process and additional staff have been recruited to tackle the backlog. The Council has monitored the impact of the changes and has moved staff to the assessment team specifically to move EHC Plans from draft to final.
33. The Council has acknowledged that it took too long to decide that it would not assess K for an EHC Plan. It took from August to November 2022, a total of around 13 weeks when it should have issued its decision within six weeks.
34. The Council has also acknowledged that when it conceded Ms B’s appeal, it should have assessed K within four weeks and issued the final EHC Plan within 20 weeks, so by 23 May. Instead it took until 30 August to issue the draft, and still has not issued the final EHC Plan. This is fault by the Council. I note that the Council’s assessment was delayed while it waited for the EP’s report. The Ombudsman has acknowledged that there is a nationwide shortage of EPs, but the Council is still obliged to meet the legal deadlines. The delay while the Council waited for the EP report is service failure. In addition, I note that the Council did not progress the assessment in good time even after it had the EP’s report. It took from mid-May to the end of August to issue the draft Plan.
35. The Council’s delay in assessing K’s needs and progressing to a final EHC Plan has caused Ms B and K continuing and significant distress and frustration.
36. The Council acknowledge that it did not respond to all of Ms B’s emails chasing it for progress of the Plan, it has failed to keep her informed during periods of delay and it took too long to respond to her stage two complaint. I am also concerned that the Council referred Ms B to the Ombudsman when she asked it again for progress on the draft EHC Plan in August. This was not part of her complaint, but was part of the ongoing delay and Ms B’s email should have been referred to the service to respond. The Council’s shortcomings in its communication have caused Ms B significant frustration and has also put her to time and trouble pursuing matters with it.
37. In response to our investigation, the Council has apologised to Ms B for these delays. It has recruited additional staff. The Council has offered to pay Ms B £300 in recognition of the unnecessary time and trouble she was put to by the Council’s shortcomings and its failure to keep in touch, respond to her contact or respond to her complaint in good time. This is in keeping with the Ombudsman’s guidance on remedies.
38. The Council also offered to make a payment to Ms B in recognition of the distress caused to the family by the delays in completing the assessment and issuing the Plan. The remedy offered is not in accordance with the Ombudsman’s guidance and I have recommended below that it increase the payment.

Alternative provision

39. In September 2022, the Council received a referral for K to start out of school tuition. This is alternative provision for children unable to attend school due to health reasons. K first visited the placement and started attending from the beginning of October 2022. However, K was diagnosed with depression and anxiety and he became too ill to attend the placement. In December, K started new treatment and Ms B, the health professionals, and the placement agreed that he should take a break from tuition to allow the medication to take effect. The placement said that Ms B should let it know when K was ready to resume tuition and it would not need further medical evidence to do so. The placement notified the Council of this.
40. The Council said that Ms B did not contact the placement to restart tuition. The school suggested a therapeutic placement, but K and Ms B thought that this was not suitable. Ms B asked for funding for a placement in a neighbouring area, but the school said there was no funding for this. The school arranged K to have home tuition for four weeks, but this finished at the end of the school year. Ms B asked the Council to consider funding further tuition throughout the school holidays to help K catch up. The Council did not respond to her request.
41. I appreciate that the Ms B was in contact with the school about alternative provision for K when he could not attend school, and that Ms B did not contact the alternative placement to resume the out of school provision that he attended prior to December 2022. However, Ms B has shared that her son had become too ill to attend the out of school placement. The school had offered an alternative, but the ultimate legal duty to ensure that a suitable education is available for K remains with the Council. This is also underlined in the Council’s policy. There is no evidence that the Council properly considered whether K had access to a suitable education. This caused K to miss out on education from January until July. The impact of the missed education was particularly significant because this was K’s final school year. We do not know whether K’s health would have allowed him to take public exams, but it is likely that he could have been better prepared for his post-16 apprenticeship had he received the education he was entitled to.

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Agreed action

42. The Council will within one month of the date of this decision:
• Issue the final EHC Plan urgently.
• Apologise to Ms B and if appropriate, K, for the failures identified above. 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 Ms B £300 in recognition of the unnecessary time and trouble she was put to by the Council’s shortcomings and its failure to keep in touch, respond to her contact or respond to her complaint in good time.
• Pay to Ms B £100 pcm from May 2023 ongoing until it issues the final EHCP, in recognition of the continuing distress and frustration this is causing her and her son. If the Council has not issued the final EHC Plan within six months, it should hold a review to decide how to resolve this.
• Pay to Ms B £1,600 in recognition of the missed educational provision between January and July 2023. I have taken into account that K was too ill to take up provision for a short period and that the school arranged a tutor for four weeks.
• Share this decision with relevant staff and remind them that the Council retains a legal responsibility for children that are out of school because of exclusion, illness or for other reasons, and should have an oversight of the education provided or offered.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have completed my investigation. There was fault by the Council causing injustice to Ms B and to her son.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman