Summary: The Council took too long to issue a final Education Health and Care Plan. It also failed to properly consider whether it should make alternative educational provision when Miss B’s child could not attend school. This caused Miss B distress and meant that her child missed out on education. The Council has agreed to take action to remedy the impact on Miss B and her child.

The complaint

1. Miss B complains that the Council:
• Took too long to progress her son’s EHC Plan; and
• Failed to provide a suitable and accessible education for her son when he could not attend school.
2. Miss B says that as a result of the Council’s failings, her son has missed out on the education he is entitled to and she has suffered distress.

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The Ombudsman’s role and powers

3. 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)
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)

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What I have and have not investigated

5. 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)
6. 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.
7. 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, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
8. 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;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; 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.  

9. Miss B has appealed against the final EHC Plan because she does not agree that the school can meet her son’s needs. Her son has not attended school since the appeal right arose. I have not investigated whether the Council should have provided alternative educational provision while Miss B’s son is not in school since it issued the final EHC Plan because this is part of the appeal.
10. Also, I have not investigated whether the Council should have done more to make sure that Miss B’s son received the provision set out in his EHC Plan. This is because he was not attending school because Miss B does not agree he should be at that school, and she has appealed to the Tribunal on this.
11. I have investigated delay by the Council issuing the EHC Plan and the alternative provision in the period up to February 2024 when the Council issued the EHC Plan and Miss B’s right of appeal arose.

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How I considered this complaint

12. I considered the information provided by Mrs B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments received before issuing this final decision.
13. 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

The law and guidance

EHC Plan process

14. 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. 
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: 

• 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

16. The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Alternative Provision

17. 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.
18. 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)
19. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
20. The courts have considered the circumstances where the section 19 duty applies. Case law 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)
21. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
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)
23. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
24. 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])

What happened

25. Miss B’s son, K, has special educational needs. He was at risk of permanent exclusion from school and his attendance was very low.
26. Miss B asked the Council for an EHC needs assessment in March 2022, when K was approaching the final year of primary school. The Council initially refused to assess K for an EHC Plan, but after mediation it agreed to do so. The Council should have issued the final EHC Plan by 13 February 2023 but it did not do so until 26 February 2024. The Council took 54 weeks too long to issue the Plan.
27. The final Plan named K’s current school as his placement and set out the special educational provision he should have there to meet his needs. Miss B disagreed that K should be at the school, and she appealed against the Plan to the Tribunal.
28. In the meantime, K’s attendance at school has been very low and in February 2024, he stopped attending altogether. Miss B says this is because the school was not meeting his needs. He was at risk of permanent exclusion and his mental health is very poor.
29. I have seen the Council’s case notes and emails between the school and the Council, and between Miss B and the Council.
30. K started at the school in September 2022. The Educational Psychologist noted in February 2023, that K’s attendance was at 75%. The school asked the Council for help with K’s education in September 2023 and January 2024 as he was not attending school. The Council’s case notes suggest that it did not respond to the school about this.
31. Miss B told the Council that she had twice asked the school for home learning for K while he could not attend school, but she says the school did not respond to her.
32. At the beginning of February 2024, Miss B complained to the Council about the lack of progress on the EHC Plan. The Council said it would issue the EHC Plan that day. It apologised for the delay and offered to pay Miss B £300 in recognition of the impact of the delay on her. Miss B asked the Council to reconsider its response. She said it did not fully take into account the impact on K and her family of the delay. The Council said that the remedy it had offered is in line with the Ombudsman’s guidance on remedies.

Analysis

33. The Council has acknowledged that it took too long to issue the final EHC Plan. The Council should have issued the final EHC Plan by 13 February 2023 but it did not do so until 26 February 2024.
34. The Council took 54 weeks too long to issue the Plan. This is significant delay. The Council’s failure to issue the Plan on time is likely to have caused Miss B distress and frustration, as her child was not having their special educational needs met in the meantime. I do not agree that the Council’s offer of £300 is in line with the Ombudsman’s guidance when the delay is so significant, and the injustice ongoing.
35. K’s attendance at school started to decrease from September 2022, due to his anxiety. By February 2023, the Council knew K’s attendance had dropped to 75%. In September 2023, the school asked the Council for help with K’s attendance as he had stopped attending. It repeated its request in January 2024 and the Council cannot show how it responded on either occasion.
36. The Council would expect the school to provide an education, even if this does involve home learning, while it tries to reengage the child. I can see that the Council had some contact with the school about K’s education. However, by September 2023, the Council knew that K was not attending school and the efforts to help him come back to school were not working. The Council cannot show that it considered whether it had a duty to make alternative provision for K. There is no evidence that it liaised with the school about what education it was providing while K was not able to come into school, nor whether the education on offer at school was available and accessible to K.
37. The Council should have also properly considered that the Educational Psychologist had recommended special education provision to meet K’s needs, but he was not getting this because the Council had not issued the EHC Plan in good time.
38. I appreciate that Miss B had not submitted medical evidence to the Council or the school. However, the Council could have liaised with medical professionals or consider other evidence, or it could have decided that this was not necessary because it was clear K had other reasons for not attending. However, I cannot see that the Council considered its alternative provision duties.
39. It is more likely than not that K missed out on educational provision from September 2023. As explained above, I cannot investigate what happened after the Council issued the Plan in February 2024 because Miss B appealed the Plan. This means that, within the scope of my investigation, K missed out on 22 weeks of education when the Council may have decided to make alternative provision.

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Agreed action

40. The Council will within one month of the date of the final decision:
• Apologise to Miss B for the impact on her when it took too long to issue the final EHC Plan and failed to properly consider its duties to make alternative educational provision, 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 in my findings;
• Pay to Miss B £500 in recognition of the impact on her of the Council’s shortcomings;
• Pay to Miss B £2,200 in recognition of the missed provision for K. Miss B can use this for the benefit of K’s education as she sees fit; and
• Share this decision with relevant officers.
41. The Council should provide us with evidence it has complied with the above actions.
42. The Council has recently agreed in settlement of a separate complaint about a different child, to review its procedure for considering and recording section 19 duties; and to circulate guidance on alternative educational provision to relevant officers. I have not made any further recommendations for the Council to improve its service.

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Final decision

43. I have completed my investigation. There was fault by the Council causing injustice to Miss B.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman