Summary: Mrs X complained about the delays in the education, health and care plan process. She also complained about the Council’s communication and said her son had been out of education. We find the Council was at fault. This caused significant distress to Mrs X and her son was out of education. The Council has agreed to several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Mrs X, complains about how the education, health and care plan process has been managed and delays in the process. She also complains about the Council’s communication.
2. Mrs X said because of this her son has been out of education.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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.
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. 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

9. I have investigated whether there were any delays in the process after August 2023. I have also investigated whether the Council’s communication was poor.
10. I have not investigated the Council's initial decision to not complete an assessment in October 2022. This is because Mrs X could have appealed this decision, to which she did. The law prevents us from considering this.
11. I note Mrs X could have appealed the type of school named in October 2023 after the EHC Plan was finalised. But I do not consider it would have been reasonable for her to do so. This is because the Council agreed to put the case to its panel to consider a change of placement. Therefore, I have considered this part of the complaint.

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How I considered this complaint

12. I spoke with Mrs X about her complaint. I considered all the information provided by Mrs X and the Council.
13. Mrs 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

EHC Plan

14. 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 the council can do this. 

Timescales and process for EHC assessment following mediation

15. Unless different timescales have been agreed in the mediation agreement, the Council must do what was agreed within legal deadlines. These are set out in the Regulations 42 and 44 of the special educational needs and disability (SEND) regulations 2014.
16. Following the mediation agreement, the Council must issue the draft plan within 5 weeks and the finalised plan within 11 weeks.

Alternative provision

17. 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.
18. 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)
19. 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)

Health needs

20. 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])

Summary of key events

21. Mrs X initially requested an EHC needs assessment for her son, B, in October 2022. But the Council did not agree to the assessment.
22. Mrs X appealed this decision and the Council did agree to a needs assessment on 16 March 2023. It said it would gather reports over the next six weeks.
23. An educational psychologist report was completed in May 2023. It was noted that:
• B would be going into year seven. He had visited the secondary school (school A) and enjoyed it;
• a transition plan would be developed; and
• a key adult would be identified for support.
24. Mrs X contacted the Council in July 2023. She said she had made several attempts to contact the Council for an update on the case. She said school A might withdraw its offer as it said it could not meet B’s needs. Mrs X also said B was refusing to attend school due to his anxiety.
25. In the same month the Council told Mrs X it had completed its assessment. It said arrangements required to meet B’s needs could be provided through the resources available to the school. It said it would not issue an EHC Plan.
26. Mrs X asked for mediation. She said B’s diagnosis of autism spectrum disorder had not been considered.
27. Mrs X told the Council a plan needed to be put in place to support B. She chased this up the following day and asked for it to be logged as a complaint.
28. The Council told Mrs X it had raised her concerns as early resolution as the complaint was upheld. It said the needs assessment process had exceeded statutory timescales and there had been a delay in her receiving the panel decision.
29. Mrs X sent a GP letter to the Council towards the end of July 2023. This noted B’s anxiety has worsened due to switching from primary school to secondary school.
30. Mrs X contacted the Council in August 2023. She said she was concerned as she had no update on the case. The Council said it hoped to have a decision by the end of the week.
31. On 22 August 2023, Mrs X told the Council it was the third missed weekly update. She asked for this to be prioritised.
32. Following the case being discussed at mediation, it was noted additional evidence was provided to support the request. It stated B’s needs met the criteria for an EHC Plan.
33. The Council sent Mrs X the draft plan on 11 September 2023.
34. School A sent the Council its response to its consultation. It said it was unable to meet B’s needs. It said it had offered reduced timetables, but this had not improved B’s anxiety about attending. It also said it did not have the resources to provide constant 1:1 support.
35. It was noted in September that school A had recorded B’s absences as illness. The Council contacted the school to see what support was in place.
36. School A said Mrs X said B would not be attending school due to his anxiety. The school said there was specifics in the plan that they could not provide.
37. The notes stated the Council needed to establish whether any medical evidence had been provided to the school. It was also noted that as B was on roll at school A, the school needed to support B to reintegrate.
38. Mrs X’s advocate contacted the Council towards the end of September 2023. They said they had serious concerns for B and that the Council had failed to adhere to timescales throughout. They also said Mrs X’s preferred school (school B) had offered a place. But said the Council had not explained why this school could not be named in the plan. The advocate also said the outcomes in the Council’s stage two complaints response had not been provided.
39. Mrs X chased the Council for a response in October 2023. She said B’s mental health was declining.
40. The Council’s notes state the GP letters Mrs X provided to the school were not sufficient. It said they would not enable the Council to form a judgement that B was not able to attend school due to a medical need. It was also noted the GP had made a recommendation for a specialist placement. But the Council had considered mainstream school to be appropriate.
41. The Council contacted Mrs X following a phone call with her. It said it would consult with school B.
42. The Council had a meeting with school A in October 2023. The following immediate actions were agreed:
• prepare the case for panel to gain the type of provision;
• update Mrs X;
• complete a referral to the online teaching service;
• referral to school B; and
• finalise the EHC Plan.
43. It was noted that possible further action was:
• a phased return to school;
• inclusion involvement; and
• a multi-disciplinary meeting with Mrs X.
44. The Council contacted Mrs X the same day. It said:
• it had consulted with school B;
• it had been in contact with school A and advised the panel had recommended that B’s needs could be met in a mainstream school with targeted funding;
• it expects school A to be able to meet B’s needs; and
• if necessary, it would issue the finalised EHC Plan naming the school to give Mrs X her appeal rights.
45. The Council told school A it had made a decision to name the school in the EHC Plan. It said it felt the form completed by the school was not robust enough to enable B not to attend. It said the panel considered mainstream school with targeted funding to be appropriate. The Council also said:
• it would suggest a programme of support be put in place to reintegrate B back into school;
• the referral for online work would be made and if agreed, this could help if a reduced timetable was required; and
• if Mrs X did not comply with this decision, school A would need to contact the Council.
46. Mrs X contacted the Council shortly after. She said school A had contacted her about the reintegration plan. But she said this conflicted with what the Council had agreed to do. She attached a further GP letter and stated B had become more withdrawn. She said B would not be returning to school A.
47. The Council sent Mrs X the final EHC Plan on 27 October 2023. It named school A.
48. The Council sent the final EHC Plan to school A and asked if B had been in school. But the school said Mrs X had not responded to the request for a return to school. The Council also stated the case would go to panel on 8 November 2023 to request a change of placement.
49. The Council’s inclusion team spoke with Mrs X in November 2023. It said:
• the role of its team was to support parents and schools to improve attendance using legal interventions where appropriate;
• it was unable to alter or impact any decisions about placements;
• the Council had decided B’s needs could be in a mainstream school and therefore the Council is meeting its duty;
• if B was unable to attend due to medical needs, then this would be different. But it said the GP letters provided were not sufficient evidence; and
• it suggested a meeting to seek a way forward.
50. The Council’s panel later agreed a change to a specialist high communication and interaction needs setting to be appropriate. But it said it required all maintained schools to be suitable and ruled out before it would consider the offered from school B.
51. Mrs X asked to discuss the panel outcome. She asked what schools would be consulted. The Council provided her with a link to its local offer. It also said it would consult with her preferences.
52. The Council consulted with schools in November 2023.
53. On 1 December 2023, the Council sent Mrs X the timetable for the online school. It asked what lessons B would like to attend. Mrs X sent in her request and asked when this would start.
54. On 8 December 2023, the Council’s panel agreed to name school B. The revised EHC Plan was issued on 15 December 2023.

Complaint to the Council

55. Mrs X’s advocate complained to the Council in August 2023. She complained about:
• the Council’s conduct through mediation;
• the Council taking to long to assess B and come to a conclusion not to issue an EHC Plan;
• having a time limited offer at school B for which an EHC Plan was required;
• poor communication; and
• no plan for education for B from September 2023.
56. The advocate also asked the Council to reimburse Mrs X for the money she had spent on the advocacy service.
57. The Council decided to pass the complaint for a stage two review. This was because the concerns regarding the needs assessment delay had already been recorded as upheld.
58. In the Council’s stage two response on 8 September 2023, it said:
• it had previously acknowledged the needs assessment exceeded the statutory timescales and there was a delay in Mrs X receiving the panel decision which was issued the 7 July 2023;
• the complaints process could not consider matters that are or have been in appeal or intrinsically associated;
• at mediation in August 2023 additional evidence was provided and the panel agreed to issue a plan. The 20-week process resumed where a draft plan should be issued in 5 weeks and a final plan issued by 16 October 2023;
• acknowledged the communication had not been as good as it could be;
• the service needed to consider Mrs X’s request for reimbursement of the fees she spent on an advocate; and
• the school was responsible for provided education.
59. The stage two response listed recommendations to be carried out within 10 working days. This included:
• an apology and for the service to consider a symbolic remedy to acknowledge the uncertainty;
• officer to follow the communications protocol in place to keep Mrs X updated;
• the service to report back on the requested reimbursement; and
• the service to provide an explanation in relation to any delay of B’s case being heard at panel.
60. On 11 October 2023, the Council wrote to Mrs X regarding the recommendations. It:
• apologised for the delay. But it said there was no requirement or obligation on families to employ additional services at a cost to themselves;
• it would not consider reimbursing Mrs X for the advocacy fees;
• it offered Mrs X a payment of £200 to acknowledge the uncertainty caused to her;
• regarding the delays in the case being heard at panel, it said the delays were impacted by human error and lack of appropriate action at key points in the process;
• it had addressed the issues raised individually through supervision processes. It said it had used this as an opportunity to inform training for team members.
61. It was noted Mrs X did not accept the £200 payment.

Analysis- was there fault by the Council causing injustice?

62. The Council has acknowledged there was a delay in Mrs X receiving the panel decision in July 2023. This was the decision to not issue an EHC Plan. This caused significant stress to Mrs X and delayed her right of appeal.
63. Following mediation in August 2023, the Council agreed to issue a plan. Guidance states following mediation, the Council must issue the draft plan within 5 weeks and the finalised plan within 11 weeks. The plan should have been finalised by the 16 October 2023. It was finalised on the 27 October. Therefore, there was a delay. This is fault. This caused further distress to Mrs X and delayed provision being in place for B.
64. Mrs X told us B had been out of education between September 2023 and January 2024. From the evidence seen, Mrs X told the Council in July B wouldn’t be attending the school and sent in a GP letter. In September 2023 the Council asked the school what support was available for B and asked to provide medical evidence.
65. 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. The Council considered the medical evidence but said it was not sufficient. That is a decision the Council is entitled to take, and we could not criticise it. The Council met with the school in October 2023 and discussed a reintegration plan for B which the school put to Mrs X. We could not criticise the Council for this.
66. The courts have confirmed that it is the Council’s duty to form a view of what is a suitable education and whether the education is reasonably practicable for the child to access. In this case the Council’s panel decided school A was suitable, with targeted funding. I note school A said in its consultation response it could not meet B’s needs. But the Council said the school’s reason was not sufficient. The Council decided the school was available and accessible for B. This is a decision the Council is entitled to take and there is no fault in the decision-making process.
67. In November 2023, the Council’s panel agreed a change to a specialist high COIN setting. A referral was made to online teaching and the Council sent Mrs X the timetable in December 2023. Mrs X asked the Council when this work would start. But I have seen no evidence to suggest the Council responded to this and Mrs X told us B did not receive any provision during this time. This is fault.
68. The Council told us it received multiple daily emails from Mrs X and said it attempted to respond in a timely manner. We recognise that the Council said in one two-month period, the case officer dealt with 192 emails on the case. But the Council did also acknowledge that communication has not been as good as it could have been. Mrs X did have to chase some responses and some emails were not responded to. This is fault. This caused significant distress to Mrs X who spent unnecessary time and trouble contacting the Council.
69. There is evidence of further fault. In the Council’s stage two response it agreed to complete the recommendations within 10 working days. Mrs X chased this, and the recommendations were carried out 23 days later. This caused further distress to Mrs X.
70. We would not seek reimbursement of the advocacy fees. This is because Mrs X chose to seek this service and we would not expect the Council to pay the costs.

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Agreed action

71. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Mrs X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Mrs X £1000 for the educational benefit of B. This is to acknowledge the lack of alternative provision between December 2023 and January 2024. It is also to acknowledge the delay in the EHC Plan being put in place which delayed specialist provision;
• pay Mrs X £500 for the avoidable distress, time and trouble caused by the Council’s actions.
72. Within two months, the Council should:
• remind relevant officers of the importance of providing clear communication and responding in a timely manner;
• remind relevant officers of the timescales set out in the SEND regulations which states following mediation agreement, councils must issue the draft plan within 5 weeks and the finalised plan within 11 weeks.
73. The Council should provide us with evidence it has complied with the above actions.

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Final decision

74. 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