Summary: Ms X complained that the Council delayed in completing an education, health and care needs assessment for her daughter and failed to make suitable alternative educational provision for her when she was unable to attend school. We found the Council delayed in completing the assessment. It has agreed to make a payment to Ms X in recognition of the injustice caused by this. We also found there was fault in how the Council recorded its decision that the education on offer was available and accessible. But this did not cause an injustice.

The complaint

1. Ms X complains that the Council delayed in completing an education, health and care needs assessment for her daughter and failed to make suitable alternative provision for her when she was unable to attend school. Ms X says that, as a result, her daughter has missed out on education and the family has suffered distress and inconvenience.

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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 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)
3. 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)
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)

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What I have and have not investigated

5. I have investigated events which took place between February 2023 and September 2023 when Ms X complained to us.

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How I considered this complaint

6. I have considered all the information provided by Ms X, made enquiries of the Council and considered its comments and the information it provided.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Education, Health and Care Plan

8. A child or young person with special educational needs may have an Education, Health and Care (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 council can do this.

Timescales and process for EHC assessment

9. 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.

Advice and Information for EHC needs assessments

10. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s educational placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
11. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
12. Those consulted have a maximum of six weeks to provide the advice.

Alternative provision

13. 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.
14. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
15. 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)

Key facts

16. In 2021 Ms X’s daughter, C, struggled to return to school after the COVID-19 pandemic. By November 2022 her attendance was starting to cause concern. Ms X met with the school and was provided with a learning plan in December 2022 which included the following to help C access education in school: regular contact between school and home; meet and greet when needed; extra support after weekends and holidays; alternative activity during PE lessons; a key adult to support C in school; access to the gym for short movement breaks; permission to use noise cancelling headphones; access to quiet space; use of the sensory room; and weekly mentoring with a key person in school to discuss any concerns.
17. In February 2023 C stopped attending school because of anxiety around the school environment. C was also using other online learning platforms to fill in the gaps. Ms X contacted the Council’s education welfare service explaining C was currently unable to attend school and requesting help. She also contacted the Council’s SEN team requesting an EHC needs assessment.
18. On 14 March Ms X told the Council C had been absent from school for 17 consecutive days and was not being provided with work by the school although she was doing some online learning. She requested S19 provision.
19. On 17 March Ms X told the Council’s SEN team that she had met with the school and C would return after Easter on a reduced timetable of two days per week. She asked the Council who was responsible for ensuring C received full-time equivalent education as she would be missing three days of school each week.
20. The SEN team explained it was the school’s responsibility to provide a programme of education for C while she was unable to physically attend.
21. On 20 March Ms X wrote to the Council again requesting alternative provision. She explained C had a diagnosis of dyspraxia and was being referred for an autism assessment. She said her sensory needs and anxiety were preventing her from attending and learning in the school environment.
22. The following day the Council’s education welfare officer (‘EWO’) spoke to the school. Her notes of the conversation state that the school said it had offered a phased return and reasonable adjustments but these had not been taken up. It also said it had no evidence of SEN.
23. An internal school email recorded that there would be a phased return two days per week and a reduced timetable for the rest of year 9, C would be given a ‘timeout’ card. It also recorded that C should be given a clear plan for returning to school after the Easter holiday.
24. Ms X’s MP wrote to the Council with regard to her concerns.
25. On 5 April the Council agreed to undertake an EHC needs assessment. It confirmed it had requested advice from relevant professionals and aimed to inform Ms X of the outcome no later than 14 June.
26. The Council responded to Ms X’s MP explaining that the school was providing education and was working with C and Ms X on a timetable to support C with a phased return to full-time education. It said the school would monitor C’s progress and continue to adapt the provision according to her needs.
27. On 12 May Ms X complained that the Council had failed to provide S19 education provision.
28. On 19 May Ms X told the EWO that C was attempting to attend school twice a week but was finding this overwhelming. She had only managed to attend three of the agreed 10 days during the current half term. She was not accessing online learning through the school and had not been doing so since February but was accessing some lesson resources available online as part of the taught element of school lessons.
29. The EWO agreed to contact the school to find out what provision was being offered and consider next steps. The school was due to meet with Ms X so the EWO agreed to await the outcome of the meeting.
30. At the meeting the school agreed to support speech and language therapy for C and to investigate online tutoring.
31. On 8 June an officer met with Ms X to discuss the situation.
32. On 14 June the Council responded to Ms X’s complaint. It did not uphold the complaint.
33. On 18 June online learning provided by the school began.
34. On 20 June the EWO contacted the school to ask what provision was being offered to C, whether any professionals were involved and whether the school had received any medical evidence that C could not attend. The school said they had met with Ms X and agreed funding for face-to-face tutoring in English, maths and science and C would also complete online lessons every day and physically attend school twice a week.
35. On 27 June the senior officer wrote to Ms X saying he had discussed the case with the school and they were going to contact her to discuss options. Ms X responded saying she had spoken to the school and C had started the online learning.
36. The same day the officer asked Ms X to confirm whether the school had discussed the programme for the following year. He also asked whether Ms X had any medical information confirming C was unable to attend education within a school. The officer also explained that he would speak with the school the following day to formulate an appropriate support programme.
37. On 28 June the Council wrote to Ms X saying the criteria for S19 provision had not been met. It said it was seeking further information to clarify C’s specific needs via the EHC needs assessment process so the school could make appropriate adjustments for her and an officer would be meeting with the school shortly to discuss their offer.
38. On 30 June the Council wrote to Ms X again explaining the criteria for S19 provision was not met because the school was able to meet C’s needs and was offering provision. The officer explained that, although Ms X had articulated a level of need, the Council needed additional information from the professionals involved with C who had deemed her unfit or unable to attend school. Once it had this information, it could formulate an appropriate education support program either with the school or otherwise. It explained that, currently, it did not have information outlining what C’s needs were apart from information from the school.
39. The same day Ms X complained about the delay in the EHC needs assessment process.
40. On 10 July the Council wrote to Ms X saying that a senior officer had discussed the provision on offer for C with the school. It said, having reviewed the available information, it considered there was an appropriate and accessible education package on offer which was proportionate to C’s reported needs. The Council was able to support the school with a re-integration programme which was currently in place and would be reviewed regularly. The Council asked Ms X to provide any further information she may have in relation to C’s specific needs which would allow the school and the Council to make any necessary amendments to her education programme.
41. Ms X responded saying there was no reintegration package in place. She said C was on a reduced timetable because the school could not meet her need. She said C had only attended five out of the possible 18 days on offer that term.
42. On 4 August the Council again told Mrs X it considered the provision the school was offering was appropriate to meet C’s needs. It said an officer had worked with the school to ensure the provision was appropriate for C’s needs. It said that if Mrs X had any further medical information to provide the Council would review its decision.
43. On 16 August the Council responded to Ms X’s complaint. It upheld her complaint about the delay in completing the EHC needs assessment. It explained that the delay was because of the unprecedented increase in the number of referrals for assessments which had impacted on the ability of the educational psychology (EP) service to manage the high volume of cases. It said that, once it received the EP’s advice, a decision would be made without further delay.
44. Ms X wrote to the Council disputing that the school was able to meet C’s needs and said she had no information about the provision that had been offered by the school.
45. On 29 August the SEN officer wrote to Ms X saying the Council had received the EP report on 24 August and could now begin drafting the EHC plan which would then be submitted to the SEN panel for approval.
46. On 8 September the school offered C face-to-face tutoring instead of the existing online tutoring. It said that, when the EHC plan was finalised, the tutoring could remain as long as C needed it. Ms X says face-to-face tutoring did not begin until November.
47. On 14 September Mrs X complained to us.
48. On 27 September the Council sent the draft EHC plan to Ms X.

Analysis

Delay in completing an assessment

49. We expect councils to follow the timescales set out in the law and the Code which is statutory guidance. We are likely to find fault or service failure where there are significant breaches of timescales.
50. The timescale for an EHC needs assessment, including issuing any final EHC plan is a maximum of 20 weeks. A draft EHC plan should be issued within 16 weeks of the request for an assessment.
51. The Council agreed to carry out an EHC needs assessment on 5 April 2023 and requested EP advice. The EP’s report should have been available by 17 May 2023 to comply with the six-week statutory timeframe. The EP’s report was not completed until 24 August 2023 – a delay of around 14 weeks. This meant the Council failed to issue a draft EHC Plan within the 16 week statutory time-limit from the date of Ms X’s request for an assessment in February 2023. It should have issued the draft plan on 18 July 2023. It did not do so until 27 September 2023, a delay of 10 weeks.
52. The Council says it has seen an unprecedented increase in the number of requests for EHC needs assessments which have directly impacted on its ability to comply with statutory timescales. It says the EP service continues to actively try and recruit additional EP’s and it employed locum EP’s to increase its capacity to provide advice for EHC needs assessments. In addition, the Council’s SEN service has employed two EHC plan writers to increase capacity to produce EHC plans.
53. I note the Council’s explanation of the problems facing its Educational Psychology Service. I also note the actions it has taken to address the situation. But the delay was not in line with the Code and was service failure.

Failure to make suitable alternative provision

54. The law says councils must provide education under their section 19 Education Act duty if no suitable educational provision has been made for a child who is missing education through exclusion, illness or otherwise. The duty arises after a child has missed 15 days of education either consecutively or cumulatively.
55. This means that, when the Council was informed about C’s lack of attendance, it had to consider whether C was receiving a suitable education, and whether it was “reasonably available and accessible” to her. If not, it needed to take action under its section 19 duty.
56. The Council decided the education on offer to C was available and accessible to her so it did not have a duty to make alternative provision. But it has not provided any evidence of how it reached this view. Our principles of good administrative practice say councils should give reasons for their decisions and keep proper records. So, I find fault because the Council did not record how or why it reached this decision.
57. However, I do not consider this fault caused C an injustice. This is because, on balance, I consider the Council’s decision would have been the same if it had been properly recorded. There is evidence that officers liaised with the school and then told Ms X they were satisfied the provision it was offering was appropriate to meet C’s needs and was accessible to her even though they did not specifically record the reasons for this.
58. The school was offering support and adaptations to help C access the education on offer. It later also offered one-to-one tuition. The Council has a wide discretion and was entitled to decide that the education offered was suitable and accessible to C. Although I find fault in the way this decision was recorded, I cannot challenge the Council’s professional judgement.

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Agreed action

59. The Council has agreed that, within one month, it will pay Ms X £250 to acknowledge the distress, frustration and uncertainty caused to her and C by its failure to comply with statutory timescales. This remedy is calculated at approximately £100 per month from the date the Council should have issued the final EHC plan (18 July 2023) until the date it issued the draft plan on 27 September 2023.
60. The Council has also agreed that, within one month, it will issue a reminder to relevant staff of the need to ensure there are contemporaneous written records of the reasons for decisions on the suitability of education and whether it is reasonably available and accessible to the child.
61. The Council should provide us with evidence it has complied with the above actions.

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Final decision

62. I find fault causing injustice.
63. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman