Summary: Miss X complained about the Council’s poor communication. She said the Council has failed to issue her son’s education, health and care plan within the statutory timescale. She also said the Council has failed to make alternative provision while her son was unable to attend school. We find the Council was at fault. This caused significant stress to Miss X and her son was out of education. To address this injustice caused by fault, the Council has agreed to several recommendations.

The complaint

1. The complainant, Miss X, complains about the Council’s poor communication. She said the Council has failed to issue her son’s education, health and care plan within the statutory timescale. She also said the Council has failed to make alternative provision while he was unable to attend school.
2. Miss X said as a result, her son has missed out on 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 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)
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.
5. 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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How I considered this complaint

6. I considered all the information provided by Miss X and the Council.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Law and guidance

8. The Act and Regulations set out the way councils should assess the special educational needs and disabilities of children and young people. The Code provides guidance to councils about how to do this.
9. Councils must decide whether to carry out an EHC needs assessment within six weeks of receiving a parent request. Regulation 6 sets out what professional advice a Council must seek. Educational Psychology (EP) advice is a mandatory part of the assessment process.
10. Professionals should provide their advice within six weeks of a request from the Council to do so. Once the Council has received all relevant advice it must decide whether an EHC plan is required. If so, it must issue a final plan within twenty weeks of receiving the request to assess.
11. At the stage when a council refuses to issue an EHC plan, or when it issues a final EHC plan, parents and the young person have a right to appeal to the SEND Tribunal, if they disagree with the council’s decision. They have two months to lodge an appeal.

Alternative provision

12. 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.
13. 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)
14. 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)

Summary of key events

15. Miss X wrote to the Council on the 22 March 2023. She asked about re-applying for an EHC needs assessment for her son, B. She said B was not attending school often because of a decline in his mental health. The Council responded and provided her with a needs assessment form. But it said she could re-apply in six months from when the previous refusal to assess was issued.
16. In May 2023 Miss X asked the Council if it would consider accepting her application early. She said B had been out of school since 16 March 2023 due to anxiety. She said the schools funding had not been reallocated which meant the school could not fund the extra support B needed.
17. Miss X submitted the needs assessment request on 20 May 2023. This included the fact that B had not been attending school. In July 2023 Miss X asked the Council for an update on the progress. She later complained as she had not had a response or update.
18. The Council agreed to carry out a needs assessment on 23 July 2023.
19. The Council responded to Miss X’s complaint in September 2023. It said:
• it had acknowledged poor communication;
• the decision to move forward with an assessment was outside the statutory 6-week timeframe;
• there was a significant increase in EHC needs assessments;
• there is a shortage of educational psychologists (EPs), but said it has started to use virtual assessments so it can access EP’s across the country; and
• there would be further delay. But said it would update Miss X at least every four weeks.
20. Miss X was unhappy with the Council’s response and stated her son had been unable to attend school since March 2023.
21. The Council said it was not aware B had been out of education as it said it was not mentioned in Miss X’s complaint. The Council said it would speak with the school to discuss what was currently being offered to B and whether it considered this to be suitable.
22. The Council’s final response to Miss X’s complaint stated:
• while B was not in education, the school had shared some resources with Miss X;
• in May 2023 the school referred Miss X to an organisation for parenting of anxious children;
• the school had an action plan to support B’s transition to his new class; and
• the school said on 12 September 2023 it had a reintegration plan in progress.
23. But Miss X said this was not a true reflection of what has happened with school. She also said following an email she sent, the Council responded to her in error and said ‘at this stage 2, do I need to respond to this? I don’t feel there is anything to say. As before, she adds the details after the response’.
24. The Council apologised for the internal email being shared with Miss X. It said it was seeking advice from management on how to approach answering as the complaint had been through stage one and stage two.
25. The Council told Miss X it had made enquiries with its learning inclusion and learning improvements team.
26. In October 2023 the Council told Miss X the specialist training in autism and raising standard team would work with the EP service. This was to support school with a reintegration plan for B.
27. In the same month, Miss X told the Council school could not meet B’s needs without funding. She said B currently attended school for 20 minutes play time. She asked the Council if it could outsource a private EP. She also asked the Council for timescales on when it expected an EP assessment would be arranged.
28. The Council’s emails in November 2023 stated B currently attended school for 30 minutes on a Monday and 30 minutes on a Friday. It was noted the school have a meeting in December to discuss next steps and build a full reintegration plan.

Analysis- was there fault by the Council causing injustice?

29. The Council has acknowledged in its complaints response it failed to meet the 6-week statutory deadline when deciding whether to move forward with an assessment. This is fault. This caused significant stress to Miss X who spent unnecessary time and trouble in asking the Council for updates.
30. There is service failure due to the Council’s inability to commission an EP. The LGSCO is aware of the problems arising from a national shortage of EPs, which in turn has created delay in the completion of B’s assessment. In response to my enquiries the Council said it envisaged B will be allocated an EP by late March 2024.
31. As there is fault in this case, we have to consider the injustice caused to Miss X and B and provide a remedy. As the needs assessment has not yet been completed we do not know what, if any, needs will be met in a plan and so cannot provide a remedy for lost provision. However, Miss X and B have experienced uncertainty and distress, and this is ongoing.
32. We recognise the Council has told Miss X it will provide a symbolic payment reflecting the impact of the assessment delays when a decision on whether or not to proceed with a plan is made. But in line with the LGSCO’s remedies guidance, we recommend the Council should pay £100 for each month outside the statutory timescales. This payment is ongoing until Miss X receives a right of appeal.
33. I acknowledge the proactive steps the Council is taking to try and resolve the lack of EP’s. In response to my enquiries it said it has worked to mitigate the dual challenges of increased demand and workforce shortages which have resulted in waiting times by:
• continually advertising vacant positions for qualified and trainee EP’s;
• contracting associate EP’s via the Council’s commissioned recruitment agent;
• prioritising statutory work above traded services;
• securing additional administrative support;
• increasing capacity through use of assistant EP’s;
• securing employed trainees to increase recruitment and retention; and
• increased use of virtual assessments to open up recruitment across the country.
34. I recognise that the Council made enquiries into B’s lack of education in September 2023. But there was a significant delay. Miss X sent an email to the Council in March 2023 which stated B had not been attending school. She mentioned it again in an email to the Council in May 2023 and as part of the needs assessment. But the Council said in September 2023 it was not aware B was out of school. This is fault.
35. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’ the Council must consider whether alternative arrangements need to be made. The duty arises after a child has missed 15 days of education either consecutively or accumulatively. It applies to all children of compulsory school age, whether or not they are on roll of a school. In March 2023, the Council should have considered whether what the school had in place was suitable.
36. Miss X told us she arranged some alternative provisions for B from August 2023. The Council told us it recognised the school had not applied for further funding and remedied this in December 2023 by reimbursing Miss X for the alternative provision. The Council has also agreed to liaise with the school to reinstate the funding to support B’s reintegration. But because of the fault detailed in paragraphs 34, B did not receive any education between the 22 March and July 2023.
37. In acknowledgment of missed education, we recommend a payment per term. I consider an appropriate figure in this case to be £2150. The missed education due to fault by the Council amounted to two terms and nine days.
38. From the evidence seen, the Council did not always respond to Miss X’s emails. The Council has acknowledged its poor communication in its complaints response and apologised. This caused significant stress to Miss X who spent unnecessary time and trouble contacting the Council. The Council has stated it would make a payment to Miss X to address this injustice caused by fault. In line with our guidance on remedies, we recommend a payment of £250.
39. The Council sent Miss X an internal email in error. This is detailed in paragraph 23. When Miss X raised this to the Council, it apologised and explained it was seeking advice from management on how to approach answering as the complaint had been through stage one and stage two. I consider this to be an appropriate remedy.

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Agreed action

40. To remedy the injustice caused by fault, within one month of my final decision the Council has agreed to:
• apologise and pay Miss X £100 for each month from the 16-week deadline up to the point its issues an appealable decision, for example a decision to refuse to issue an EHC Plan;
• if the Council decides to issue an EHC Plan, the remedy of £100 per month should continue from the 20-week deadline until a final plan is issued;
• pay Miss X £250 for the avoidable distress, time and trouble caused by the Council’s actions; and
• pay Miss X £2150 for the educational benefit of B, in recognition of the missed education between 22 March and July 2023.
41. Within two months the Council should issue written reminders to relevant staff to ensure they are aware of the Council's section 19 duty.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman