Summary: Miss X complained the Council delayed completing her son, Y’s Education, Health and Care (EHC) needs assessment and failed to put in alternative provision in place when he stopped attending school in January 2023. The Council delayed completing Y’s EHC needs assessment which caused a subsequent delay in issuing his final Plan. The Council agreed to make a payment to recognise the frustration and delayed appeal rights. The Council did not properly consider at the time whether it had a duty to provide alternative provision, however Y’s school did offer appropriate support and a reintegration plan and so any fault did not cause an injustice. The Council will carry out service improvements around its communication and record keeping.

The complaint

1. Miss X complained the Council delayed completing her son, Y’s EHC needs assessment which caused a delay in issuing him with a final EHC Plan. She also complained the Council failed to ensure he received alternative provision when he stopped attending school in January 2023 due to anxiety.
2. Miss X said this has caused distress, uncertainty and delayed appeal rights. She said it has negatively impacted on Y’s educational and social development.

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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. 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 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)
6. 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.
7. 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)
8. 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

9. I spoke to Miss X about her complaint and considered information she provided.
10. I considered information from the Council and its response to my enquiry letter.
11. Miss X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

EHC Plans

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’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.
13. 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 Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;

• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• Once the Council agrees to carry out the EHC needs assessment it should issue its decision whether to issue a plan within 10 weeks and a finalised EHC Plan within 14 weeks.

14. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
15. 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. The appeal can be against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.

Alternative provision

16. 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.
17. Councils also have some flexibility with regard to the time taken to set up alternative provision. However, they must make provision from the sixth day in exclusion cases, and they should do so in medical cases where it is clear the absence is for more than 15 school days.
18. 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).
19. In practice, we would expect to see Councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If – having considered all relevant evidence – a Council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented, and communicated promptly to the parents.
20. Councils can rely on information from a child’s school that it has set work and/or provided teaching and so decide there is no duty or a reduced duty. Statutory guidance says that councils should only become involved in such arrangements if it has reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health.

What happened

21. Miss X has a child, Y who in January 2023 was at a mainstream secondary school. A doctors letter dated August 2022 showed Y suffered from anxiety and he began refusing to attend school during 2022. Records show he attended for the first part of the 2022/23 academic year but he stopped almost completely by the end of January 2023 other than the odd half a day.
22. The school submitted a non-attendance referral to the Council in March 2023.
23. Records show Y had Early Help and social work involvement during the first part of 2023 and a Child in Need meeting took place in April 2023. Records of this noted Y was withdrawn, not attending school or engaging with social workers. Notes show all of this was likely linked to his anxiety.
24. In June 2023 Y’s school contacted the Council’s Fair Access Team (responsible for managing those pupils not attending school and providing relevant support to schools) to make it aware he had not attended school. The school outlined a package of alternative provision it had already offered Y which included a phased return and online tuition.
25. Y was due to begin year 11 in September 2023 but he remained out of school. Miss X asked the Council to carry out an EHC needs assessment for Y. The Council wrote to Miss X refusing to do so in October 2023. Miss X appealed the Council’s decision to the SEND tribunal.
26. Y’s school contacted the Council’s Fair Access Team and meetings were held in October and November 2023. Records show Y’s school had made various attempts to reintegrate Y back into education and had offered alternative provision. This included:
• Online tuition and lessons with a teacher.
• Virtual school with a bespoke timetable. Y did not log into this, so it was withdrawn at the end of September 2023.
• Private therapist which Y declined.
• Phased return timetable which was offered September to November 2023.
• Support assistant in lessons and access to a timeout and fidget card.

Records show Miss X wanted Y to have a one-to-one tutor at home due to his special educational needs (SEN).

27. Miss X complained to the Council in October 2023 about Y’s lack of education and its failure to meet his SENs and seek medical advice for Y’s absence. The Council outlined the efforts made by Y’s school to help Y and the provision it had offered. It said regarding Y’s SEN that he did not have an EHC Plan and that the school could meet his SEN needs. Miss X escalated her complaint to stage two of the complaints process in December 2023.
28. Email records show Y’s school stayed in touch with Miss X about work being sent home. Miss X acknowledged work being sent during November but said Y’s anxiety had prevented him from doing so.
29. In early February 2024 the Council conceded Miss X’s appeal and decided to carry out the EHC needs assessment for Y. This being the case the deadline to issue Y’s final EHC Plan was 10 May 2024.
30. As part of the EHC needs assessment the Council requested advice from an Educational Psychologist (EP) in February 2024. The EP provided advice in May 2024 which was a delay of around 9 weeks. The Council agreed to a further EP assessment following concerns raised by Miss X. The EP provided the second report on 20 August 2024.
31. The Council responded to Miss X’s stage two complaint in May 2024. It apologised for the delay in responding. The Council said the school and it took action to support Y and there was no other supporting medical evidence showing he could not attend school. It apologised for the delay in completing the EHC needs assessment and said it was addressing resource shortages which it said caused the delay.
32. The Council decided to issue Y with an EHC Plan in June 2024 and then issued Y’s draft EHC Plan in July 2024. It issued his final Plan on 4 September 2024 naming a mainstream sixth form as his placement. Records show Miss X has appealed the content and named placement of the EHC Plan to the SEND tribunal.
33. Miss X said that since September 2024 Y has attended an alternative placement that she found while she awaits the tribunal to hear her appeal.
34. Miss X remained unhappy and complained to us.

The Council’s response to us

35. The Council accepted it took too long to issue Y’s EHC Plan. It said this was down to the increase in EHC needs assessment requests and a shortage of Educational Psychologists (EPs) which is both a local and national problem. The Council already has an action plan in place which is dealing with the backlog, increasing staffing capacity and improving timelines.
36. The Council said its SEN team was unaware Y was not attending school until Miss X’s EHC needs assessment request in September 2023 but conceded its Fair Access Team was aware from June. It reiterated its complaint response to Miss X in relation to Y’s alternative provision. It said Y’s school put appropriate support and interventions in place.

My findings

EHC needs assessment delays

37. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
38. The Council conceded Miss X’s appeal against the decision not to assess Y and agreed to carry out the EHC needs assessment on the 2 February 2024. So, the Council should have made its decision whether to issue a Plan by 12 April 2024 and then subsequently issued the final Plan by 10 May 2024.
39. The EP report should have been available to the Council by the end of January 2024 in order for it to have met the April deadline. The EP report was not complete until the start of April 2024 which was a delay of 9 weeks and fault. It caused a delay in the Council deciding whether to issue Y with an EHC Plan and had a knock on effect which meant the final Plan was delayed. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases.
40. In total there was a delay of 17 weeks in completing Y’s EHC needs assessment. This caused Miss X distress, uncertainty and delayed her right of appeal to the SEND tribunal which she has now used.
41. The Council has explained following similar cases investigated by the Ombudsman the action it is taking to meet the demands in its SEND service and to reduce the backlog in the EHC needs assessment process. It also has a SEND improvement plan which is ongoing. This includes ongoing recruitment of EPs and SEN case officers. We continue to monitor the Council’s ongoing work to reduce the backlog through our casework.

The Council’s Section 19 duty to provide alternative provision

42. The Council told us that its SEND team was unaware Y was not attending school until September 2023. However, there is evidence showing the Council was aware in March 2023 following a non-attendance referral and then again in April 2023 as the matter was discussed at a Child in Need professionals meeting. It is likely, on balance that the correct officers were not made aware of Y’s absence earlier due to poor communication and lack of information sharing following the Child in Need meeting. That was fault.
43. Having known about Y’s absence from school in March the Council should have considered then whether it owed Y a Section 19 duty to put alternative provision in place. Not doing so was fault. From June 2023 however the Council was aware what efforts the school had put in place. While this is the case, it was the Council’s overall duty to decide whether a Section 19 duty was owed to Y. I have seen no records showing the Council considered whether it owed a Section 19 duty to Y or whether it was satisfied, at the time, that the provision on offer was suitable and it did not need to intervene. The lack of record keeping around the Council’s consideration of this was fault.
44. I have also seen no evidence of oversight from the Council. The school appears to have kept the Council informed of its alternative provision offers through to the end of 2023 however there is little evidence showing any Council involvement during 2024. That was fault.
45. However, as explained above there is evidence that Y’s school offered alternative provision to Y, put in place reintegration plans and offered other support. Y did not engage with any of the tuition on offer or the reintegration plan from 2023 into 2024. However, the school kept oversight and in contact with Miss X into 2024 and arranged for him to take some exams and assessments So, taking into account the evidence and Y’s circumstances, on balance, further intervention from the Council would unlikely have led to a different outcome.

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Agreed action

46. Within one month of the final decision the Council agreed to take the following action:
1. Pay Mrs X £200 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in deciding whether to issue Y with an EHC Plan caused by the delay in obtaining advice from an Educational Psychologist.
2. Remind SEND officers:
1. To make a record of its consideration of whether it owes a Section 19 duty to children not attending school, at the time it becomes aware.
2. To record that where a school is providing support and alternative provision that the Council has considered whether that provision is suitable.
3. Keep oversight of children receiving alternative provision from schools to ensure arrangements remain appropriate or whether it needs to step in and make arrangements itself.
47. Within three months of the final decision the Council should take the following action:
1. Review its communication and information sharing processes between departments to ensure that where there is evidence that a child is not attending school that it is communicated to the relevant officers so a decision can be made, at the time, whether a Section 19 duty is owed.
2. Review its communication process with schools to ensure information about children not attending school is passed to the Council at the earliest opportunity.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault. It also agreed to carry out service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman