Summary: There was fault and service failure in failing to issue an Education, Health and Care Plan on time. This caused distress and uncertainty whether Y would have been able to remain on their college course if the Plan had been issued on time. The Council will apologise and make a symbolic payment to acknowledge the injustice caused. The complaint is upheld.

The complaint

1. Ms X complains on behalf of her child, whom I shall refer to as Y. Ms X complains the Council delayed issuing a first Education, Health and Care (EHC) Plan for Y. Y dropped out of their college placement in early 2024 during the period the Plan was delayed. Y was not in education or training again until Autumn 2024, but that college placement has also failed.
2. Ms X considers if the Plan had been issued on time, Y would have received timely support so they could have completed their college course.
3. Ms X says she paid for private academic tuition while Y was out of education and the impact of the fault has caused unnecessary stress to the whole family.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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)
6. We cannot investigate most complaints about what happens in education settings. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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)
8. 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.

9. 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))

10. 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

11. I have considered information provided by Ms X and the Council.
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 Department for Education ‘High Needs Funding: 2023-24 Operational Guidance’ referred to by Ms X in her complaint documents.
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
15. 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

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: 

• 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).

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. An Education, Health and Care (EHC) Plan 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. 
20. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan of (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

21. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision (AP). 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)
22. The Government has issued operational guidance ‘High Needs Funding:2023-24’ which Ms X has referenced in her complaint documents to the Council. Ms X has referred to Section 11 ‘Top-up Funding’ which states: ‘Although many of the pupils and students receiving high needs funding will have an associated EHC plan, local authorities have the flexibility to provide high needs funding outside the statutory assessment process for all children and young people with high needs up to the age of 19’.
23. Section 11 also states: ‘Local authorities allocate top-up funding for the high needs placements they have commissioned, that is, for children and young people who require additional support or a specialist placement because they have complex SEND or require AP. When making such placements, the local authority will be acting under the relevant statutory framework (the Children and Families Act 2014 for EHC plans or the Education Act 1996 for AP). As the statutory responsible body, the local authority is responsible for the final decision about the level of funding required to secure the necessary provision. In determining the funding level, the local authority should have consulted with the school or college and should ensure their decision is evidence-based and reasonable.’

Factual background  

24. Ms X’s child left secondary school in Summer 2023 at age 16 and enrolled on a vocational college course in Autumn 2023.
25. In Autumn 2023 Ms X applied for an Education, Health and Care (EHC) needs assessment under The Act.
26. The Council agreed an assessment was required. After obtaining professional advice it also decided Y did require a Plan. The final Plan should have been issued within twenty weeks of the request, by December 2023. It was not issued until June 2024, a delay of six months. This delay was partly due to a shortage of EPs to provide advice for assessments. The EP advice should have been available within six weeks and was not provided until Spring 2024. A draft plan was issued within three weeks of the Council receiving the EP advice, but the final Plan was not issued until three months after the EP advice was received.
27. While Y started their college course in Autumn 2023, they struggled without additional support. The Council says Y left the course in February 2024. Ms X believes if the final EHC Plan had been issued on time, in December, the placement would not have broken down. When the final Plan was issued it included provision for additional adult support in lessons and for social interactions, and a mentor.
28. Ms X complained about delay in January. The Council advised the delay was due to awaiting EP advice. As Y was now not in education or training Ms X wanted the Council to put in place alternative provision such as English and Maths tuition for the remainder of the year. Ms X said the Council could access funding for special educational needs without an EHC Plan being in place.
29. The Council’s stage two complaint response disputed this and stated funding was only available once complex needs had been assessed and identified via the EHC needs assessment process. No provision was put in place until Y started the next college course in Autumn 2024 except for private tuition Ms X arranged.
30. Ms X also wanted the Council to issue the final EHC Plan in time for a planned transition before Autumn 2024 so the next college placement would have more prospects of success. The final Plan was issued in late June 2024, which Ms X says left insufficient time for transition visits.
31. As Y had left their course in February 2024, new consultations had to be sent out and this was partly responsible for the further delay between draft and final Plans. The final Plan issued named a college from September 2024.
32. Y started the new course in Autumn 2024, but this also failed, and Y was again out of education. Ms X believes if the final EHC Plan had been in place in December 2023, that Y would have remained in education or training and the two placements would not have failed.
33. The Council’s complaint response pointed to the colleges being expected to provide support to Y, and noted Y had moved out of the Council area shortly before starting the new course in Autumn 2024.

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What I have and have not investigated

34. I have investigated the delay in the EHC needs assessment requested in Autumn 2023 and completed in June 2024.
35. I cannot investigate any failure to implement the final EHC Plan from Autumn 2024 or lack of transition planning in Summer 2024. The Council has not had an opportunity to comment as these events occurred after the final Plan was issued and were not considered in the Council’s stage two complaint response (Local Government Act 1974, section 30(1B) and 34H(i), as amended). I also cannot investigate the content of the final EHC Plan; Ms X had a right of appeal if she or Y was dissatisfied with the wording in the Plan.

Analysis

Fault

36. The Council has accepted there was a six month delay in issuing the final EHC Plan. While several months of this delay was due to the shortage of EPs, which is a national issue, there was more delay after the EP evidence was received. In part this was because of Y needing to find a new college course after stopping attending in early 2024.
37. The delay of six months was service failure and fault.
38. Ms X paid for private tuition while Y was out of education in Spring / Summer 2024, but this is not a case where the Council had a legal duty to provide education under s.19 Education Act 1996. Y was not of compulsory school age. The Council had a legal duty to provide the special educational provision in the EHC Plan but only from the date the Plan was issued. There was no legal duty to provide education or training to Y during the period the EHC Plan was delayed. The Government guidance on high needs funding confirms an EHC Plan does not need to be in place for funding to be released but does state the funding has to be provided under either s.19 Education Act or s.42 Children and Families Act 2014. Neither applied to Y so I cannot criticise the Council for not advancing funding prior to the EHC Plan being issued.

Injustice

39. I cannot say with any certainty that Y would have been more successful on the college courses and been able to continue in education had the EHC Plan and special educational provision been in place earlier. I acknowledge this uncertainty is an injustice. Ms X and Y will always have the uncertainty whether Y’s progress in education may have been different without the Council’s delay.
40. The fault has caused frustration and distress.

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Agreed action

Within four weeks of my final decision:

41. The Council will apologise to Mx X and Y for the fault and service failure identified in this decision statement. 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 I have recommended.
42. The Council will pay Ms X, on behalf of Y, £1000 to acknowledge the distress and uncertainty caused by the delay.
43. The Council will provide us with evidence it has complied with the above actions.
44. I have considered whether I need to make service improvement recommendations, but the Council has provided information it has increased its resource of EPs and case officers. It says it is now meeting the six week deadline for EP advice in the vast majority of cases. I therefore do not consider further recommendations are required.

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Final decision

45. I have completed my investigation. There was fault and service failure in failing to issue an EHC Plan on time. This caused distress and uncertainty whether Y would have been able to remain on their college course if the Plan had been issued on time. I am satisfied the agreed actions set out above are an appropriate remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman