Summary: There was delay by the Council in issuing a final Education, Health and Care Plan, and a failure to secure fulltime suitable education when a pupil could only attend school part-time. This caused loss of education, distress and inconvenience to the whole family. The Council will apologise, make symbolic payments and carry out service improvements.

The complaint

1. Ms X complains on her own behalf and on behalf of her child, whom I shall refer to as Z. Ms X complains the Council:
• Delayed completing Z’s Education, Health and Care (EHC) needs assessment by five months;
• Failed to provide suitable fulltime education under s.19 Education Act 1996 between November 2023 and July 2024, when Z could only attend school part-time;
• Refused to fund a 1:1 teaching assistant while the EHC Plan was delayed so Z could attend school in the afternoons;
• Upheld the complaint of delay but failed to offer a suitable remedy.

2. As a result of the alleged fault Ms X says:
• Z missed out on fulltime education between November 2023 and July 2024 which affected their confidence and mental health;
• A school for Year 7 was not agreed until the summer holidays so Z missed out on a planned transition;
• The delay meant they could not apply for transport until Summer 2024 and so this was delayed for the Autumn term;
• Z initially struggled to settle into the new school due to the time out of education, lack of transition planning and impact on their mental health.
• The part-time timetable had a significant impact on parents, causing difficulties at work and high levels of stress. Ms X had to leave work every lunchtime to collect Z from school and then go back to work.
• Ms X is now on sick leave due to stress.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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)
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. 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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What I have and have not investigated

9. I have investigated the delay between Autumn 2023 and Summer 2024. I have not investigated the actions of the school, which are outside our jurisdiction, or any matter Ms X has or could have appealed to the SEND Tribunal.

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How I considered this complaint

10. I have considered information provided by Ms X and the Council.
11. 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.

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

16. 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. 

17. Those consulted have a maximum of six weeks to provide the advice. 
18. An 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. 
19. 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 education or alternative 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)
20. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
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: Out of school, out of sight? published July 2022. This guidance says councils should keep all cases of part-time education under review.

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. The Council told me Ms X made it aware of the part-time timetable in early November 2023. Records show Ms X told the Council:

• She had made a parental request for an EHC needs assessment (in October).
• The school had put a part-time timetable in place for the foreseeable future.

25. This suggests the part-time timetable had been in place for a while already.
26. Ms X asked the Council to consider providing extra funding to the school so Z could attend fulltime while the EHC needs assessment was ongoing. Ms X says she and the school told the Council that Z could attend more hours if a teaching assistant was funded in the afternoons. Under the reduced timetable Z had to leave at lunchtime. The Council said advance funding was not possible as the Council could only provide funding via an EHC Plan once this was granted and needs fully assessed.
27. The Council advised Ms X that ‘schools can only use reduced timetables with parental consent so if you are unhappy about this, you should make this clear to the school’. The Council said the school could buy in specialist advice from its specialist teaching service to support Z.
28. Ms X queried the Council’s response referring to the s.19 duty and the Government’s guidance on top up funding. Ms X said she had agreed a reduced timetable as a temporary measure while additional support was sought given the school had exhausted other options. Ms X said the school had a member of staff that could support Z to attend afternoons if funding was released. Ms X expressed concern that an extended reduced timetable would affect Z being able to access a mainstream school for Year 7 in Autumn 2024.
29. The Council did not provide additional funding.
30. The Council confirmed to me it also did not intervene to ensure suitable fulltime education was provided to Z. It told me it regarded the responsibility for providing education lay with the primary school Z attended and that the part-time timetable was ‘implemented in agreement with parent’.
31. In early 2024, Ms X complained about delay in the EHC needs assessment being completed. Ms X said the twenty-week deadline was in mid-February but by January they had not even had the EP assessment arranged. The Council’s stage one complaint response acknowledged delay and said this was due to lack of EP capacity. Ms X asked for the complaint to be considered at stage two.
32. The EP advice was provided to the Council in April 2024.
33. The Council’s stage two response said the draft plan would be provided by the end of May 2024. Ms X told us in June this had not happened.
34. The complaint responses did not address Ms X’s concerns about the reduced timetable.
35. In early July, Z started transition visits to the school allocated via the usual admissions process for secondary entry (not the EHC Plan process). These were unsuccessful with the secondary school advising Z was unlikely to be able to manage a large mainstream school environment after showing significant distress during the visit.
36. The Council says it issued a final Plan in early July 2024 naming a type of school and reissued this in late July to name a specific school, which Z started at in Autumn 2024.
37. Ms Z appealed the content of the first final EHC Plan to the SEND Tribunal.
38. In response to my enquiries the Council acknowledged delays with its EHC needs assessments and said the difficulties it was facing regarding EP capacity were reflected nationally. It says it has increased its EP resource and case officer resource and says EP advice is now being provided within 6 weeks in most cases.

Analysis

39. The Council had a duty to ensure Z received suitable fulltime education. It may have expected the school to provide this, but when the school failed to do so it had a legal duty to intervene under s.19. I have not seen any medical evidence Z was medically unable to manage a full day at school. The evidence available from Ms X is that she and the school considered Z could attend full days if funding for teaching assistant support was provided for afternoons.
40. I have found no evidence to support the Council’s statement the reduced timetable was agreed with parents. The Council knew in November 2023 Ms X was not happy with this continuing on anything other than a temporary basis.
41. I find the Council failed to secure suitable fulltime education for Z from November 2023 to July 2024. This was fault and caused distress, inconvenience, loss of education and impacted the family’s usual activities.
42. There was a five month delay in issuing an EHC Plan. Three months of the delay was after the EP advice was available. This was fault and affected the range of schools Z could consider for secondary. A school was only identified in July, preventing a planned transition before the end of term.
43. The Council was at fault in providing incorrect advice that it could not provide funding to make Z’s education up to fulltime without an EHC Plan. The Council could have done so under its s.19 duty, as the guidance Ms X referred the Council to explained. The Council could also have considered part-time alternative provision to make Z’s education up to fulltime.
44. The Council’s complaint response failed to address all the complaint issues and failed to consider a financial remedy for delay, meaning Ms X had to bring her complaint to the Ombudsman.
45. The Council’s responses also wrongly stated the legal position, ignoring its s.19 duty, and wrongly stating Ms X had agreed the reduced timetable, when it knew she did not agree.
46. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. We take account of factors such as:
• The severity of the child’s special educational needs.
• Any educational provision, full-time or part-time, that was made during the period.
• Whether additional provision can now remedy some, or all, of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.

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Agreed action

Within four weeks of my final decision:

47. The Council will apologise to Mx X and Z 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.
48. The Council will pay Ms X, on behalf of Z, £2500 to acknowledge the impact of the delay including loss of education to Z.
49. The Council will pay Ms X £1000 to acknowledge the impact of the delay and failure to provide Z with fulltime education on her, including the impact on her work-life and the distress and inconvenience caused.

Within eight weeks of my final decision:

50. The Council will provide refresher training and / or guidance to its case officers on:
• Its s.19 duty and how this applies even when a child is on roll or receiving part-time education
• High needs funding and the circumstances when this can be provided under s.19 before an EHC Plan is in place.
51. I am satisfied the Council has taken steps to address the capacity issues within its EP and case officer team and further service improvement recommendations are not required.
52. The Council will provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. There was delay in issuing a final EHC Plan and in failing to secure fulltime suitable education for Z. This caused loss of education, distress and inconvenience to the whole family. I am satisfied the agreed actions set out above are a suitable 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