Summary: Ms Y complained about the way the Council dealt her child, Z’s special educational needs support and alternative provision. We have found fault by the Council, causing injustice, in failing to: complete Z’s educational health and care needs assessment within the statutory timescales; provide Z with a suitable education and monitor the delivery of Z’s first education, health and care plan. The Council has agreed to remedy this injustice by apologising to Ms Y, making payments to recognise the worry and distress caused and the impact on Z of the missed education, and service improvements.

The complaint

1. The complainant, Ms Y, complains the Council failed to:
1. complete her child, Z’s Education Health and Care needs assessment and issue their Education Health and Care Plan within the statutory time scales; and
2. provide Z with a suitable education from November 2021.

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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.
3. 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. 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).

What I have and have not investigated

6. 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)

Events before November 2022

7. I have not considered any part of Ms Y’s complaint about events which took place before November 2022.
8. This is because Ms Y did not complain to us until December 2023. I do not consider there are good reasons why Ms Y could not have complained to us about this part of her complaint before this.

Events after December 2023

9. I have not investigated any complaint about issues which arose after December 2023, as these were not part of the complaint brought to us.

Failure to provide a suitable education from November 2023

10. I have not investigated this part of Ms Y’s complaint. This is because:

• if Ms Y thought the school and provision set out in the final Education Health and Care Plan issued in November 2023 could not meet Z’s needs, I consider it reasonable to expect her to appeal to the SEND Tribunal;
• 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);
• 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; and
• the period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

11. I consider Z’s continued absence from school from November 2023 is linked to the Council’s decisions about the education setting and provision set out in their EHC Plan which could have been part of an appeal to the SEND Tribunal.

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How I considered this complaint

12. I spoke to Ms Y, made enquiries of the Council, and read the information Ms Y and the Council provided about the complaint.
13. I have invited Ms Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Special educational needs

14. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and arrangements for meeting them.
15. 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.

The Education, Health and Care needs assessment process

16. The process for carrying out Education Health and Care (EHC) needs assessments and producing EHC Plans. Is set out in the Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’).
17. The Code 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;
• 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; and
• 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). 

Special educational provision

18. Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
19. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC Plan review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Alternative provision

20. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and any special educational needs they may have. (Education Act 1996, section 19(6))
22. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

What happened

23. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

24. Z attended a mainstream secondary school. By November 2021 Z was struggling to attend school. The school tried to support them in a number of different ways, including through its small alternative provision unit, without success.
25. There was no improvement with Z’s attendance and engagement issues and in February 2022 the school and Ms Y agreed the school setting was not working. Ms Y says Z stopped attending school altogether from February 2022. No alternative provision was arranged for Z.
26. In June 2022, Z was diagnosed as having Autistic Spectrum Condition.

November 2022: Request for an EHC needs assessment

27. On 15 November, Ms Y asked the Council to carry out an assessment of Z’s EHC needs. In her request Ms Y said Z had not attended school for a long time and she was waiting to hear about an arrangement for alternative provision.
28. In its statement to the Council in support of Ms Y’s request, Z’s school said:

• Ms Y’s request was urgent. Z’s situation continued to deteriorate rapidly. The school was more and more worried about Z each day;
• it had tried many types of interventions and provision to support Z with their attendance and engagement, but nothing had worked; and
• Z had not attended school for over a year now. Attempts at arranging an alternative provision placement had failed.

December 2022: Alternative provision placement

29. From December Z was provided with a vocational training session, one morning a week (2.5 hours), as alternative provision.
30. This was the only alternative provision put in place for Z. No other provision was arranged.

May/June 2023: Educational psychologist’s report

31. The Council instructed an educational psychologist to complete a report for Z’s EHC needs assessment. The educational psychologist contacted Ms Y about this in May.
32. The educational psychologist completed the report which recorded Z had:

• not attended their mainstream placement for over a year; and
• started attending a vocational course one morning (2.5 hours) a week.

33. The Council sent a copy of the report to Ms Y on 1 June. It said this had been completed as part of Z’s EHC needs assessment. It would consider the report before deciding whether Z should have an EHC Plan.

September 2023: Ms Y’s complaint

34. Ms Y had heard nothing further from the Council about the outcome of the EHC needs assessment. She complained to the Council about its delay in completing this.
35. The Council accepted, in its complaint response, it had not completed the assessment within the statutory timescales. It said it:

• received Ms Y request on 15 November 2022. It should have made a decision about whether to carry out an assessment by 26 January 2023. It didn’t make this decision until 10 March 2023;
• should have completed the assessment and decided whether to issue an EHC Plan by 6 March 2023. It should then have issued a final EHC Plan by 3 April 2023; and
• had now decided to issue an EHC Plan. A draft plan would be sent out by 6 October.

36. It also said the delay was because it was dealing with an increased volume of requests for EHC needs assessments.

November 2023: Council’s final complaint response

37. Ms Y was not satisfied with the Council’s complaint response. She said it had not considered the impact of the delay on Z or offered any remedy for this. Z had not been able to attend school since November 2021. The delay in issuing the EHC Plan meant Z did not have appropriate provision in place for their educational needs.
38. In its final response the Council said:

• the situation was resolved now the draft EHC Plan had been issued (on 4 October) and an action plan put in place;
• Z’s placement had been considered at the Council’s inclusion placement panel meeting on 30 October 2023;
• it was obtaining further information about a potential placement and options around building a bespoke education offer to meet Z’s outcomes. An officer had recently spoken to Ms Y and it would now issue the final EHC Plan;
• it had no record of being made aware Z was not attending school nor any request to arrange suitable alternative provision for Z; and
• the school had offered Z options of returning to school, remote learning or alternative provision.

November 2023: Final EHC Plan

39. Z’s final EHC Plan was issued on 10 November 2023. This named Z’s current mainstream school as their placement. Z’s special educational provision set out in the Plan was to be delivered by education staff.
40. The Plan was sent to Ms Y with a letter that told her about her right to appeal to the Send Tribunal if she was unhappy about the provision in the Plan. The letter also told her she could contact the SEND Information, Advice and Support Service for further advice and support.
41. The Council says the school then met with Ms Y and Z to discuss a bespoke package including internal alternative provision, online learning and 1:1 teaching in school. It says it believes a suitable offer was made, but Ms Y and Z did not take this up.
42. Ms Y says she arranged the meeting with the school to discuss what provision it could offer for Z. She did not refuse the school’s offer, and she and Z worked with the school in response to its proposals. But the offer was not suitable, because the only provision offered was in the mainstream school setting which Z could not attend, or online learning which Z could not engage with. Z’s position remained unchanged following the issue of the final Plan. They were still unable to attend school and the only provision made was the 2.5 hours a week vocational training.

December 2023: Ms Y’s complaint to us

43. Ms Y was unhappy with the Council’s final response and brought her complaint to us.

My view – was there fault by the Council causing injustice?

a) Failure to complete the assessment process within statutory timescales

44. The Council has accepted it did not complete the EHC needs assessment process within the statutory timescales.
45. It should have told Ms Y by 26 January 2023 it had decided to carry out an assessment. It should then have issued the final EHC Plan by 3 April 2023.
46. The Council didn’t tell Ms Y about its decision to carry out an assessment. She only found out about this when the Educational Psychologist contacted her in May 2023.
47. And the final EHC plan wasn’t issued until 10 November 2023, more than seven months late.
48. The delay in completing the EHC needs assessment process and communication failures were fault.

Impact of the delays and communication failures

49. The school made it clear in November 2022, Z’s school attendance and engagement issues were urgent and the situation was deteriorating rapidly.
50. The delay of seven months in completing the assessment meant another school year passed without an EHC Plan in place to address Z’s urgent need for support.
51. And the delay and communication failures caused Ms Y additional uncertainty, distress and worry about the arrangements for Z’s education and special educational needs provision.
52. But Ms Y has told us Z was unable to engage with the placement and provision set out in the Plan when it was finally issued. On this basis I don’t consider I can make a finding Z missed out on support she would have received sooner had the Plan been issued within the statutory timescales.

b) Failure to provide Z with a suitable education

53. The Council says it did not know Z was not attending school until October 2023.
54. But my view is the Council was made aware of this in November 2022. Both Ms Y and the school made it very clear in the request for the EHC needs assessment, Z had not attended school for over a year and their situation was urgent. The Educational Psychologist’s report in May 2023 also confirmed Z was not attending school.
55. It is the Council’s duty to arrange the provision of suitable education for children who, by reason of illness, exclusion from school or otherwise, may not receive suitable education unless such arrangements are made for them (section 19 duty). The Council cannot delegate this duty to the child’s school.
56. If a council is told a child is not attending school, as the Council was here in November 2022, it has a duty to step in and consider whether it should make alternative provision for the child.
57. I have not seen anything to show the Council considered, or took any action in response to, this information in November 2022 confirming Z was not attending school or receiving any suitable education.
58. In my view, the Council’s failure to consider its section 19 duty - whether it should make alternative provision for Z otherwise than at school - was fault.

Impact of the failure to consider its duty to make alternative provision

59. The information available to the Council in November 2022 confirmed Z’s prolonged absence from school because of their significant social, emotional and mental health needs. On this basis, I consider it is likely the Council would have decided to ensure Z was provided with a suitable education through alternative provision.
60. One weekly morning vocational session, from December 2022 did not, in my view, amount to a full-time suitable education for Z. No other alternative provision, such as home tuition was arranged.
61. My view is, because of the Council’s failure, Z missed out on almost all their education from November 2022 to November 2023.
62. We usually consider a remedy payment of between £900 and £2,400 a term is appropriate to reflect the impact of missed provision on the child or young person. The figure is based on the circumstances of each case, to reflect the particular impact on that child or young person.
63. Here, I have taken account of the vocational training that was put in place and consider the remedy should be towards the middle of the scale.
64. Ms Y was also caused upset and frustration because of the Council’s failure to provide Z with a suitable education.

c) Failure to monitor the delivery of the provision in Z’s EHC Plan

65. This was Z’s first EHC Plan. Their SEN support was to be delivered by education staff at Z’s mainstream school through a bespoke package. But although there was some discussion between Ms Y and school about this, a suitable package was not agreed and the SEN support in Z’s Plan was not delivered.
66. I have not seen any information showing the Council took any action to monitor the delivery of the SEN support in Z’s plan as we expect it have done, this being Z’s first plan. This failure to monitor the plan was fault.

Impact of the failure to monitor Z’s EHC Plan

67. But I don’t consider this failure caused Ms Y or Z any injustice and so I am not proposing a personal remedy for the fault. This is because Ms Y knew at this stage the placement and provision in the EHC Plan weren’t working and could have used her appeal rights to challenge this.

Service Improvements

68. We have issued a number of decisions over the last two years recommending improvements to the Council’s SEN and alternative provision procedures. Because of this I have included a recommendation in this decision a senior member of the Council’s education team review the further service improvements proposed below and discuss the outcome with the Council’s relevant oversight committee.

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Agreed action

69. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Ms Y for its failures to: complete the EHC needs assessment process within the statutory timescales; provide Z with a suitable education from November 2022 to November 2023: and monitor Z’s EHC Plan. This apology should be in line with our guidance on Making an effective apology;
2. pay Ms Y £350 to reflect the upset, worry, uncertainty and frustration caused by the Council’s failures. This is a symbolic amount based on our guidance on remedies; and
3. pay Ms Y, on Z’s behalf, £4,500 (based on 3 school terms from November 2022 to November 2023). This is a remedy for Z’s benefit to recognise the injustice the missed education has caused them.
70. And within three months from the date of our final decision, the Council has agreed to:
1. review its procedures to ensure it:

• completes EHC needs assessments within the statutory timescales, and monitors the progress of these assessments;
• keeps parents informed of the progress of an EHC needs assessment;
• monitors the delivery of provision in EHC Plans, taking into account our expectations about this (as set out in paragraph 19); and
• properly considers its section 19 duty to arrange suitable education, when it is made aware a child is not attending school, and provides a suitable education, where it decides it should make alternative provision. Its procedure should make it clear the Council cannot delegate its legal duty under section 19 to schools and include a process for monitoring the arrangements made for a child’s alternative provision.
2. arrange for a senior member of its education team to consider the reviews and develop an action plan, including any guidance or training for officers, to ensure the Council meets the outcomes set out in 70 (a); and.
3. refer the action plan, together with this decision, to the appropriate overview and scrutiny committee for their consideration.

71. The Council should provide us with evidence it has complied with the above actions.

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Final decision

72. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action as a suitable way to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman