• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Ms C complains the Council delayed in completing an Education Health and Care (EHC) plan and failed to provide full time education to X. The Council is at fault for delays in the EHC plan process and providing suitable education. This meant X did not receive the education she needed and caused distress to Ms C and her family. To put things right the Council has agreed to make a symbolic payment to X and her family and make service improvements to prevent future reoccurrence.

The complaint

1. Ms C complains about the Council’s delay in completing the Education Health and Care (EHC) plan for her child X, and provide full time education for X when she could not go to school from June 2021.
2. Ms C says the Council’s faults have meant X has not had education for three years and her anxiety has worsened. This has also affected the wider family who have had the time, stress, and anxiety of supporting X while she has been out of school.

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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 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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
9. 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)
10. 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

11. The law says we cannot investigate late complaints unless we decide there are good reasons. I have exercised the Ombudsman’s discretion and decided to investigate matters from April 2022. This is when Ms C approached the Council for an EHC plan and when the Council was first aware X was not attending school. I have not exercised the Ombudsman’s discretion to investigate matters before this date as there appears to be no reason why Ms C could not have complained earlier. It is also unlikely an investigation before April 2022 would find fault with the Council’s actions as before this time there is no evidence to suggest it knew X was not attending school.
12. I have also not considered matters from January 2024. This is because Ms C appealed to the SEND tribunal about education provision from January 2024. For the reasons explained in paragraph four, the Ombudsman is unable to investigate matters where an appeal has been made to a SEND tribunal.

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How I considered this complaint

13. I spoke with Ms C and considered information she sent. I made enquiries of the Council and considered its response. I also considered:-
    • Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’);
    • Children and Families Act 2014;
    • Special Educational Needs Regulations 2014;
    • complaint correspondence;
    • Council case notes;
    • X’s Education Health Care plans and support plans;
    • appeals to the SEND tribunal;
    • Council’s correspondence with Ms C.
14. Ms C 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

What should have happened

EHC Plan

15. 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 are needed to meet them.

Timescales and process for EHC assessment

16. 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:
    • 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 needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
    • 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); and
    • councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.

Advice and information for EHC needs assessments

17. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes the child’s educational placement and psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice.

Suitable education

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. 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)).
20. 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)
21. 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. We consider 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.
22. 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.

West Northamptonshire Council – “Customer Compliments, Comments and Complaints Policy

23. This says the second stage is an independent review. The reviewer, “will not reinvestigate the complaints, but will take into account all the available evidence, alongside your views and desired outcome and will respond to you to explain whether they feel the response and outcome offered to you is fair and proportionate”.

What happened

Background information

24. X has anxiety and following the limits imposed by COVID-19 her attendance at school declined as her anxieties and needs increased. In April 2022 Ms C asked the Council to complete an assessment for an EHC plan. At this time X was on the roll in year 10 at school A.

EHC plan

25. The Council has already accepted it delayed in the EHC plan process. Ms C asked the Council for an assessment on 28 April 2022, the Council agreed to complete an assessment on 22 June 2022. The Council issued a final EHC plan on 13 June 2023. The Council says most of the delay was because of a lack of Educational Psychologists. A staff shortage caused further delay. The delay was nearly 39 weeks.
26. Because of the links with school A, Ms C asked the Council to specify it in the EHC plan. The school said it could not meet X’s needs but the Council directed the school to accept X and said extra funds would enable the school to provide the necessary resources for X. Within a couple of weeks it was clear school A was unsuitable for X and Ms C asked the Council for Education Otherwise Than At School (EOTAS). At the same time Ms C appealed to the SEND tribunal.
27. Following a mediation meeting on 25 August 2023 the Council revised X’s EHC plan and issued a final EHC plan on 3 November naming school B to start from January 2024. Ms C appealed this decision.

Alternative provision

28. The Council says it was not aware of the difficulties X was having at school. However in response to my enquiries accepted it has not provided X with suitable alternative provision from June 2023. This is when school A approached it about difficulties it was having in providing education to X. It also accepts that it did receive communication in April 2022 which should have alerted the relevant departments to take action about X’s education.
29. The Council says the school has provided support to X which has included private home tutoring, daily catch ups through Microsoft Teams and some online learning. The evidence provided suggests there was an agreement to start some online tutoring by the school in March 2022 but this did not occur.
30. Ms C says X has missed education and she has had to pay privately for outside activities such as music and dance to provide outlets for X. She says supporting X with her education while working has affected her and her family both financially and emotionally.

Complaint handling

31. Ms C made a complaint to the Council in July 2023. The Council responded to her complaint on 23 August apologising about the delay in the EHC plan process caused by a lack of EPs. The Council said it could take no action about the lack of alternative education as school A had not used the referral process and because the school was out of area it had no other alert such as attendance records. It said because it was not aware of the difficulties X was facing at the time it could take no action.
32. The Council agreed to look at how to address the shortage in EPs and how to improve communication between neighbouring authorities so out of county children are not similarly affected in the future.
33. Ms C asked the Council to consider her complaint at Stage 2 of its process. She asked for financial compensation. Ms C provided details of an email to the Council dated 25 April 2022, and a letter from the Council dated 13 June 2022 declining to complete an EHC needs assessment. Ms C also refers to a letter from school A to the Council asking for an early help assessment. Following prompts by Ms C the Council completed a Stage 2 response in February 2024. It said its role was to consider whether the Stage 1 investigation was appropriate. It apologised again but did not consider the evidence provided by Ms C about the Council being aware of X’s difficulties.

Was there fault causing injustice?

Delays in the EHC plan process

34. The Council delayed by nearly two weeks in deciding whether to assess X for an EHC plan. This is not in line with the statutory timescales in the Code and is fault.
35. The Council has accepted that it did not issue the EHC Plan for X within 20 weeks. The Council took just over 10 months. The Council in its response to the complaint explained the reasons for the delay which included the availability of Educational Psychologists. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for the service failure. While I accept the reasons for the delay, this is fault.
36. The delay has caused frustration and worry for X’s family and caused concern that X was not receiving the support she needed.

Provision of alternative education

37. The law says that where a child is not attending school a Council must first assess whether education is available or accessible to the child. If it is not it should arrange alternative education.
38. The Council did not make this decision because it says it was unaware of the difficulties X was facing. However, based on the evidence provided, including an email and Ms C’s EHC assessment request, by April 2022 the Council was aware of the difficulties. The Council was therefore at fault for failing to consider whether X had education which was available and accessible.
39. The Council accepts that in June 2023 X did not have education which was available and accessible and there was no alternative provision in place. The failure to provide alternative provision from this point until January 2024 (the start of school B which is felt by the Council to be available and accessible) is fault.
40. As there was no change in X’s circumstances or identified school, I consider on balance had the Council made this decision in April 2022, it would have reached the same decision and the duty to provide alternative provision would have arisen at that time. I therefore consider the Council should have made alternative provision from April 2022.
41. While the Council says the school was providing some alternative education it has provided no evidence of any education support for X from April 2022. X has the injustice of a loss of education from April 2022 in almost two key years of her school life. It has also had a knock on effect on her emotional and social development and general well-being. Ms C and her family have had the time, trouble, and cost in missed work to support X. Ms C has asked for repayment of music and dance lessons. While we can ask a Council to repay fees for any education privately funded because of fault, in this case I have not recommended a refund. This is because, based on the available information, I cannot say the costs for music and dance were a result of the fault because they could be considered as extra-curricular activities.

Complaint handling

42. The Council’s complaint’s policy says Stage 2 is not a reinvestigation but a check to see if the Stage 1 investigation was properly completed and all the evidence considered. I do not consider the Council acted within its policy. Ms C provided new evidence which could not be considered at Stage 1 and was relevant to the complaint. I consider the Council should have addressed the extra evidence or asked for a reinvestigation into that point given its importance.
43. There was also a six month delay in the Council providing a Stage 2 response. Because of the Council’s failures and delay Ms C had the frustration and added time and trouble in raising her concerns.

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Agreed action

44. I have found fault by the Council which has caused X and her family injustice. I consider the following actions are suitable to remedy the personal injustice caused and to improve future services. I have used our guidance on remedies to calculate the missed provision considering X’s academic year and her well-being at the time.
45. 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.
46. The Council has agreed to within one month of the final decision:-
    • 1. apologise to X and Ms C for the delays in the Education Health Care plan process and the failure to provide alternative education;
      2. pay Ms C £950 a symbolic payment for the delay in the EHC plan process and access to X’s appeal rights;
      3. pay Ms C £1800 for X’s educational benefit to represent loss of education for the summer term from April 2022 to July 2022 when X was in year 9;
      4. pay Ms C £6000 for X’s educational benefit to represent loss of education for the whole 2022/23 academic year when X was in year 10; and £2400 for the first term in year 11.
47. In a previous complaint Reference 23004841 the Council has agreed to take action to improve services when providing alternative education and improving timescales for completing EHC plans. I do not intend to repeat these actions but in addition the Council has agreed within three months of the final decision to:-
    • 1. provide evidence of the steps it is taking to address the delays in getting Educational Psychology assessments;
      2. set out what steps/policy changes it is making to address communication with other local authorities where a child is attending an out of area school; and
      3. review why there was a delay in responding at Stage 2 of this complaint and take action to address any lessons learnt from the review.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have found fault in the Council’s actions which has caused injustice. I consider the agreed actions are suitable to remedy the personal injustice and improve future practice. I have completed my investigation and closed the complaint on this basis.

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Investigator's decision on behalf of the Ombudsman

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