Summary: Ms X complains the Council failed to respond to her request for an education, health and care needs assessment for her child, Y, it failed to provide Y with a full-time education when she was unable to attend school and it failed to respond to her concerns. The Council acknowledges it was at fault and it has adequately remedied the injustice caused and made service improvements. There is nothing further the Ombudsman can add.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council:
• failed to respond to a request to assess her child, Y's, education and health care needs within six weeks;
• failed to provide Y with full-time alternative education when she was unable to attend school, and
• failed to respond to her concerns about Y’s education.

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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. 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)
4. 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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How I considered this complaint

5. I considered Ms X’s complaint and the information she provided.
6. I considered the information I received from the Council in response to our enquiries.
7. Ms X and the Council had the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

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What I found

Education, Health and Care (EHC) needs assessments and plans

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 the council can do this.
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.
10. The Regulations say 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.

Alternative education

11. 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.
12. 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).
13. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have (Education Act 1996, section 19(6)).
14. 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).

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What happened

15. Ms X has a child, Y, who was on roll at a mainstream school, School 1. Ms X says Y was unable to attend School 1 because it could not meet their needs.
16. In July 2023, Ms X requested an education, health and care (EHC) needs assessment for Y. Ms X complained to the Council in September 2023 (Complaint 1) because it had been more than six weeks and the Council had not sent notice of its decision to her.
17. On 28 September 2023, the Council agreed to carry out an EHC needs assessment of Y. The Council sought advice from professionals on the same day. This included an EP. The advice was due by 9 November 2023.
18. On 13 November 2023, the Council sent a draft EHC Plan to Ms X.
19. In November 2023, Ms X complained to the Council that the out of school tuition Y was receiving was due to stop as of 12 December 2023 because the school said it would no longer fund it (Complaint 2). Ms X said she was worried about the impact this would have on Y’s GCSEs because she was currently in Year 10.
20. Ms X also complained to the Council about the difficulties she was facing in contacting the Council’s SEND Department. She said she had emailed and telephoned the department on several occasions with no answer. Ms X said she was told by reception that the SEND Department does not answer calls because they are too busy.
21. On 11 December 2023, the Council responded to Complaint 1. The Council upheld the complaint about it taking longer than six weeks to issue a decision notice about Y’s EHC needs assessment. The Council explained in its response that the delays were due to ‘unprecedented staffing issues’ that meant it did not have enough staff in place to fulfil Ms X’s request within the legal timeframe. The Council apologised to Ms X.
22. Ms X contacted the Council in December 2023 to escalate Complaint 2.
23. In response to our preliminary enquiries, the Council advised us in February 2024 that it had responded to Complaint 1 but not Complaint 2. The Council said it would apologise to Ms X for the oversight and it will ensure Complaint 2 will be escalated through the complaints procedure and a final response will be issued.
24. School 1 had arranged 5 hours a week of alternative provision with a view to build up the hours gradually. It also set 4 hours a week of homework for Y to complete.
25. The Council issued Y’s final EHC Plan in February 2024. It did not name a placement in the plan but it stated a specialist setting was required for Y.
26. In March 2024, the Council sent its final response for Complaint 2 to Ms X. The Council upheld the following complaints:
• The Council failed to inform Ms X of a decision following her request for an EHC needs assessment within 6 weeks;
• The Council failed to issue Y’s final EHC Plan within the 20-week deadline;
• The SEND assessment service did not respond to all of Ms X’s email communications;
• The Council did not investigate Ms X’s complaint properly.
27. The Council apologised to Ms X and offered £2400 for Y’s loss of education and £500 for avoidable distress and time and trouble.
28. In March 2024 Ms X was still finding it difficult to correspond and communicate with anyone from the SEND Department at the Council. She had sent numerous emails about the provision School 1 could provide because Y wanted to remain at School 1.
29. In April 2024 Ms X sent a further complaint to the Council about its lack of communication. The Council responded to this complaint in July 2024 and it upheld her complaints. The Council offered a further remedy for the education Y did not receive from April to July 2024 and also for the avoidable distress caused by the lack of progress in arranging the correct provision for Y.
30. In May 2024, the alternative provision arranged by School 1 ceased because Y had reintegrated back into school.

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Analysis

EHC Needs assessment

31. The Council should have issued its decision on the EHC needs assessment by 11 September 2023 but it issued on 28 September 2023. The Council failed to meet the statutory deadlines for notifying Ms X of its decision following Y’s EHC needs assessment. This was fault. This fault delayed Ms X’s opportunity to appeal the decision to the SEND Tribunal and it caused a short period of uncertainty and frustration.

Y’s EHC Plan and education

32. A final EHC Plan should have been issued by 18 December 2024 but it was not issued until 21 February 2024. This is fault and caused frustration to Ms X. It delayed Ms X’s appeal right to the SEND Tribunal. This delay also meant Y did not have the most accurate EHC Plan in place to meet her needs.

Alternative provision

33. The Council has acknowledged Y did not receive a suitable education from January 2024 to March 2024. It has remedied the injustice of this loss of education.
34. I understand the Council has also acknowledged its failure to provide Y with a suitable education from April to July 2024.
35. The Ombudsman welcomes the Council’s acknowledgement of fault and the injustice caused to Ms X and to Y.

Council’s communication with Ms X

36. In November 2023 Ms X complained to the Council that she was unable to contact anyone in the Council’s SEND Department despite several phone calls and emails to them.
37. The Council has also acknowledged it was at fault for not investigating and responding to Complaint 2. This caused frustration to Ms X and she was put to avoidable time and trouble in approaching the Ombudsman.
38. The Council has since responded to Ms X’s complaint and apologised for not responding sooner.

Remedying the injustice caused by the faults

39. The Council apologised to Ms X and offered £2400 for Y’s loss of education and £500 for avoidable distress and time and trouble. I understand the Council has offered Ms X a further payment of £1437 for the loss of education from April 2024 to July 2024 and £250 for avoidable distress. The remedies provided by the Council are in line with the Ombudsman’s Guidance on Remedies.
40. The Council has responded to Complaint 2 and apologised for the delay.
41. The Council is in the process of completing the following service improvements:
• A restructure of its SEND Assessment Service to be more streamlined and efficient as well as increasing the number of staff within the team.
• Commissioning additional support for EPs and it plans to grow the numbers of EPs;
• Introduced a new system to track reports;
• Established a new SEND Strategic Board; and
• Made free SEND advice available to all schools in its area to help improve early intervention.
42. There is no outstanding injustice for the Council to remedy and the Ombudsman welcomes the action the Council has taken to improve its service. There is nothing further the Ombudsman can add.

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Final decision

43. There is fault by the Council and it has adequately remedied the injustice caused. The Council has also made sufficient service improvements. There is nothing further the Ombudsman can add. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman