Summary: There was delay in completing an Education, Health and Care (EHC) needs assessment and delay in considering whether alternative education was required. This caused uncertainty, frustration, distress and additional time and trouble. However, it is not possible to say with any certainty that Y would have accessed additional education without this delay, the suitability of education offered is a matter which is under appeal and outside the remit of the Ombudsman. The Council will apologise and make a symbolic payment for distress and uncertainty.

The complaint

1. Mr X complains on his own behalf and on behalf of his child, Y. Y has severe anxiety and special educational needs (SEN).
2. Mr X complains the Council:
1. Delayed in issuing a final EHC Plan. This should have been issued within twenty weeks and took thirteen months.
2. Continued to delay even after admitting fault.
3. Only issued the Plan after Mr X contacted his Member of Parliament, the Ombudsman and explored judicial review.
4. Failed to offer a remedy (other than an apology) for the impact of the delay.
5. Failed to respond to requests for alternative / s.19 education from Winter 2023 onwards.
6. Failed to allocate a caseworker for four months when a member of staff left and did so only after Mr X complained.
7. Named a school that has stated it cannot meet need and where Y has not been able to attend since October 2023.
8. Produced two plans for re-engaging Y in education, one plan which the family felt could work, but then failed to proceed with this plan after a second Panel meeting.
3. Mr X says the alleged fault:

• Has caused unnecessary time, trouble, frustration and uncertainty.
• Has placed additional administrative and caring responsibilities, and costs, on parents.
• Has impeded Y being able to access education over a prolonged period.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
5. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
6. 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)
7. 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.
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)

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How I considered this complaint

10. I have considered information provided by Mr X and the Council including:
• EHC Plan and SEN documents
• Consultations with providers
• Complaint documents
• Correspondence with schools
• Council’s revised policy.
11. I have spoken to Mr X by telephone.
12.   I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)

•      The Special Education and Disability Regulations 2014 (‘The Regulations’)

•      The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)

• The Education Act 1996.

13. I have considered the Ombudsman’s Guidance on Remedies.
14. 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 found

Relevant law and guidance

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 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 council can do this.
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 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.
• 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).
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

17. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

18. Those consulted have a maximum of six weeks to provide the advice. 
19. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.

20. There is a right of appeal to the Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.
21. The courts have established that if someone has appealed to the Tribunal, 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)
22. 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.

23. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.

24. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• delays in the process before an appeal right started; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.  

25. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

26. 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.
27. 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)
28. 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])

Key events

29. Mr X applied for an Education, Health and Care needs assessment in Spring 2023. The Council had to respond to this within six weeks, which it did, confirming it would assess.
30. Y was attending School A, a mainstream school.
31. The process of assessment should have been completed within a maximum of twenty weeks of the request, by Summer 2023. It was not completed until Spring 2024, thirteen months after the request was received.
32. The Council says the delay was due to:
• a seven-week delay in receipt of mandatory EP advice
• a four-month gap when the caseworker left the Council and no replacement had been recruited
• from Winter 2023 to Spring 2024 due to disagreement about the placement and what provision was required to reintegrate Y back into School A.
33. The Council says it has addressed the delay by filling all caseworker vacancies, but it continues to have insufficient EP capacity, although it has engaged Associate EP’s and used independent companies to assist with needs assessments.
34. Mr X says the EP report obtained was incomplete and led them to commissioning their own private report.
35. Y’s attendance dropped to 87% in 2022/23. In 2023/24, Y attended for two months but had below 20% attendance. Y stopped attending school after October half-term. This was due to severe anxiety about attending school.
36. Mr X says if an accurate EHC Plan had been produced on time then the situation may not have got to the point where Y’s attendance was impacted as Y would have been receiving more support from Summer 2023.
37. Mr X asked the Council to provide s.19 education.
38. The Council says Mr X provided medical advice from a general practitioner, but this did not clearly state Y was unfit to attend. The Council acknowledges it should have evaluated the evidence and decided whether it was satisfied s.19 education was required and communicated this decision to Mr X. It admits it failed to do so in 2023.
39. The Council says the focus was on completing the EHC Plan and the long-term provision Y would require. It issued a draft EHC Plan in late 2023. Mr X says this only happened after he sought help from his Member of Parliament and other sources.
40. The Council says it did not have clear processes where a request for s.19 education came from a parent, and not from a school, when its ‘front door’ service for educational support services would usually triage referrals. The Council says in response to Mr X’s complaint it has approved a new s.19 policy to cover parental requests and how s.19 and EHC needs assessments interact with each other.
41. The Council says Mr X made a further request for s.19 education in February 2024. The Council says this time it did evaluate the evidence and agreed s.19 education was required, although it considered that it was Y’s SEN not a medical or health reason that was impacting attendance. It says it made an offer of s.19 education which Mr X declined. Mr X told me the offer was unsuitable.
42. The Council told me Mr X wanted an online learning provider which was not registered with OFSTED. School A would not support an unregistered provider as part of a dual placement and considered the Council could provide a similar s.19 offer. The offer from the Council was for short-term on-site registered alternative provision with Y remaining on the roll of School A, with the aim of returning there. The Council says it considered this offer of interim provision plus reintegration into the existing school appropriate. Mr X did not consider Y would be able to attend on-site.
43. Mr X was unhappy the Council had in his view ‘u-turned’ from considering online provision.
44. The Council finalised the EHC Plan in Spring 2024 naming School A. The Council says this was issued alongside the offer of interim provision to support reintegration.
45. Mr X appealed this decision. The disagreement between Mr X and the Council about the placement in Section I is the subject of the appeal.

What I have and have not investigated

46. I have investigated the complaint issues set out above except for (f) and (g). Mr X has appealed to the SEND Tribunal about the placement named in the final EHC Plan, this will include the Tribunal considering the suitability of interim provision, the suitability of online and on-site provision, and the suitability of School A. As Mr X has used an alternative legal remedy, I cannot also investigate these issues.
47. I also cannot investigate any concerns Mr X has with the Council’s EP report. This is a matter he can raise in his appeal and it is inevitable the Tribunal will consider the two EP reports and take a view. I cannot trespass on the role of the Tribunal.
48. The Council provided a response to Mr X’s complaint in late 2023, at this time the complaint was restricted to the delay in the EHC needs assessment. Mr X has raised subsequent complaint issues about whether s.19 education should have been provided. While this has not been through the formal complaint process, I am satisfied the Council has had an opportunity to consider it. The Council has provided further comment about the s.19 issue in its response to my enquiries, including an acknowledgment it failed to consider the s.19 education issue properly in 2023. I have therefore included consideration of the s.19 education issue in my investigation, but only up to the date the final EHC Plan was issued, when Mr X gained an appeal right which he has used.

Analysis

Fault

49. There was excessive delay in completing the EHC needs assessment. This should have been completed by Summer 2023 and was not completed until Spring 2024. This was fault. The delay meant Y did not receive the special educational provision in the Plan for this period. Y was not attending school for much of the period of delay, but I acknowledge Mr X’s views that this situation may have been avoided with a timely EHC Plan and accompanying support. The uncertainty the family have about this is an injustice.
50. The delay meant Mr X’s right of appeal against the placement named in Section I (School A) was also delayed. This loss of appeal rights was an injustice.
51. The outcome of Mr X’s appeal is not yet known; this will be a matter for the Tribunal’s specialist expertise, not the Ombudsman.
52. Mr X has the uncertainty of whether the appeal may lead to different provision, and whether this may have been in place sooner, ‘but for’ the delay. This uncertainty is an injustice.
53. The Council failed to consider the request for s.19 education in Winter 2023. It failed to consider if the medical evidence provided was sufficiently persuasive to decide whether Y was unfit to attend school for reasons of ill-health. When it considered the matter in Spring 2024, it decided Y was not able to attend School A immediately for reasons due to SEN, but not because Y was medically unfit to attend any school. The Council considered Y could attend an onsite alternative provision with small class sizes on an interim basis before reintegrating into school. As this was what the Council decided in Spring 2024, on the balance of probabilities, I find the Council would have made a similar decision three to five months earlier, especially as Y’s non-attendance was more recent.
54. The Ombudsman is prevented in law from intervening in judgments made by councils without fault (Local Government Act 1974, section 34(3), as amended). Our role is to consider if the Council followed the correct process, not question the decision reached. The Council did not follow the correct process in Winter 2023, but it did in Spring 2024. While the 2023 process was incorrect, I cannot say that on the balance of probabilities the Council would have offered different provision then than it did in 2024. Mr X declined this provision as not suitable. Whether the Council or Mr X is right about this issue is for the SEND Tribunal to determine. I cannot explore this issue further without trespassing on the role of the Tribunal.
55. There were problems with EP and caseworker capacity. The Council has taken action to resolve these.
56. There was also fault in the Council failing to pursue the s.19 request when an EHC needs assessment was ongoing. Again, the Council has recognised a weakness in its processes, amended its policy, and introduced a new process for parent s.19 referrals.
57. Considering the above actions taken by the Council I do not consider further service improvement recommendations by me are required.

Injustice

58. There was delay in completing the EHC needs assessment which in turn delayed a right of appeal. The delay caused unnecessary distress, uncertainty, time and trouble.
59. There is not enough evidence to say Y was medically unfit to attend any school; the loss of education cannot be separated from the suitability of education offered, which is a matter that has been appealed. I cannot make a finding the s.19 education offered was unsuitable.

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Agreed action

Within four weeks of my final decision:

60. The Council will apologise for the additional fault identified in the Council’s response to my enquiries about s.19 education and set out in this decision statement.
61. The Council will pay Mr X £1000 for the distress, time and trouble, loss of appeal rights and uncertainty caused.
62. The Council will provide us with evidence it has complied with the above actions.

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Final decision

63. I have completed my investigation. There was delay in completing an EHC needs assessment and delay in considering whether s.19 education was required. This caused uncertainty, frustration, distress and additional time and trouble. However, it is not possible to say that Y would have accessed additional education without this delay, the suitability of education offered is a matter which is under appeal and outside the remit of the Ombudsman. I am satisfied the agreed actions set out above, as well as the actions already taken by the Council, are a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman