Summary: Mrs X complained the Council failed to provide her child, Y, with a suitable alternative education when they could not attend school, delayed issuing Y’s Education, Health and Care (EHC) Plan in line with statutory timescales and its communication with her was poor. The Council was at fault when it delayed issuing Y’s EHC Plan which caused Mrs X frustration and Y to miss educational provision, the Council will make a payment of £2,025 and a symbolic payment to Mrs X. The Council was also at fault for uncertainty caused by its failure to keep Y’s alternative provision under review. The Council will pay Mrs X a symbolic payment for the uncertainty this caused and for poor communication. It has already agreed to act to improve its services.

The complaint

1. Mrs X complained the Council:
• delayed her child, Y’s, Education, Health and Care (EHC) Needs Assessment process;
• delayed finalising Y’s EHC Plan;
• failed to provide suitable alternative educational provision for Y between November 2022 and September 2024 when Y was not attending school;
• communicated poorly; and
• had poor complaints handling.
2. Mrs X said this caused avoidable time and trouble, distress, caused an impact on Y’s mental health and affected the whole family.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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.
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. 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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

11. As explained in paragraph 4 above we cannot investigate late complaints unless we decide there are good reasons. Mrs X complained to the Ombudsman in mid-March 2024 about events starting in November 2022. Part of her complaint is late and there are no good reasons to exercise discretion to investigate events going back to November 2022.
12. In relation to Y’s educational provision I have investigated between mid-January 2023 when the Council put in place alternative provision for Y and early September 2024 when the Council issued Y’s final Education, Health and Care (EHC) Plan.
13. In relation to the delay in issuing Y’s EHC Plan, as explained in paragraph 6 above, I could not consider Y’s EHC needs assessment until mid-June 2023. This is because before this time Mrs X had appealed to the special educational needs and disabilities (SEND) tribunal.
14. I have investigated between mid-June 2023 when the Council decided it would assess Y for an EHC Plan and early September 2024 when Y’s final EHC Plan was issued. After which Mrs X had appeal rights to the SEND tribunal.

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How I considered this complaint

15. I considered:
• the information Mrs X provided about her complaint and spoke to her on the telephone;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
16. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

17. 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. Section F sets out the educational provision needed by the child or young person and section I sets out the educational placement.
18. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the Final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a Final EHC Plan has been issued.
19. 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.
• a council should decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks of the request for an assessment.
• 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.
20. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). Those consulted have six weeks to provide the advice.

Alternative provision

21. Council’s 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 provision.
22. 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’)
23. 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?
24. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
25. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

Complaints handling

26. The Council follows a two-stage complaints process. The target timescale for stage 1 complaint responses is up to 10 working days with a maximum of 20 working days. The target timescale for stage 2 complaint responses is 20 working days.

What happened

27. Y lives with their family and has anxiety, autism and required mental health support. Y was on role at a mainstream secondary school, School 1. In 2022, Y did not have an Education, Health and Care (EHC) Plan.

Background

28. Y’s attendance at School 1 began to decline in October 2022. In early November 2022 Y was diagnosed with autism. In late November 2022 a doctor’s letter said it would be in Y’s best interests, for the time being, to be able to work from home until Y felt they could rejoin a school-based environment. Mrs X said Y stopped attending School 1 altogether in late 2022. In late December 2022 Mrs X asked the Council to carry out an Education, Health and Care (EHC) needs assessment for Y.

Mid-January 2023 onwards

29. In mid-January 2023 the Council put in place alternative provision, Alternative Provision 1 for Y. The Council records show the plan was for Y to receive 25 hours full time equivalent education through blended learning in Maths, English, Science and Humanities. It said lessons would be online with online assignments and by paper worksheets. The records stated Y would receive support in one to one sessions and would also be offered pastoral support. Mrs X said Y received between one and two hours per week one to one tutoring at home and Y also had access to online lessons which could be accessed between one and two hours per week. Mrs X said Y struggled to access the online sessions, which Mrs X said were not live lessons. Mrs X said the home tutoring continued until summer 2023 and Y remained on roll at School 1.
30. In early February 2023 a Council panel decided it would not complete an EHC needs assessment for Y. The decision letter said Y’s needs could be met by support available at Y’s educational setting. Mrs X was unhappy with the Council’s decision. Mrs X attended mediation and received a mediation certificate in late February 2023, she submitted an appeal to the special educational needs and disabilities (SEND) tribunal in late March 2023.
31. In early March 2023 Alternative Provision 1 held Y’s review attended by School 1 and Mrs X, the Council did not attend the meeting. The records noted Y was engaging well with the alternative provision, their current hours were 25 hours per week and Y was progressing towards their targets. It noted Y attended 50% of pastoral sessions in School 1 and still had mental health support. It was agreed Y would continue to attend Alternative Provision 1. Mrs X said Y did not attend Alternative Provision 1 for 25 hours per week and only had occasional meetings with School 1.
32. The next day a Council special needs officer carried out an inclusion planning meeting. This was also attended by Mrs X and School 1. They discussed the Councils refusal to assess Y for an EHC Plan. The meeting also considered what provision could be put in place for Y to access education. The notes recorded Y attended Alternative Provision 1, 15 hours per week. Mrs X disagreed Y attended Alternative Provision 1 for 15 hours per week. Information was sent to a Council SEN assessment team manager to reconsider the Council’s decision on assessing Y for an EHC Plan but the manager did not change the decision.
33. In May and June 2023 new evidence was sent to the Council from Child and Adolescent Mental Health Services (CAMHS), a psychiatrist and coordinated clinical report. Mrs X chased the Council for a response to the new evidence several times and escalated it to a manager in early June 2023 with no initial response. In mid-June 2023 the Council agreed to complete Y’s EHC needs assessment and sent Mrs X a letter explaining its decision three days later.
34. In mid-June 2023 Alternative Provision 1 held a review meeting attended by School 1 and Mrs X. The Council did not attend the meeting. The records noted Y was engaging well with alternative provision, attended for 25 hours and Y was happy with the consistency of the new tutor and Y was in touch with School 1 weekly. The records show Y was progressing towards their targets. Discussions also took place between School 1, Mrs X, Alternative Provision 1 and Y’s psychotherapist about Y reintegrating to School 1 in September 2023, with Alternative Provision 1 remaining in place.
35. In September 2023 Y hoped to attend School 1 again but Mrs X said there was no additional provision put in place for Y and Y’s mental health deteriorated and Y did not attend School 1.
36. In late September 2023 Mrs X raised a formal complaint with the Council. She said the Council had ignored her phone messages and emails about education support for Y which was impacting on Y’s metal health and Y felt they had not been listened to. She asked for an update on Y’s EHC needs assessment, an apology to be given to Y and consideration of how communication could be improved.
37. In early October 2023 the Council responded to Mrs X’s stage 1 complaint. It apologised Mrs X had not received sufficient communication through Y’s EHC needs assessment process. It said it was working to provide clearer guidance and expectations from the relevant staff. It said there were delays with the educational psychologist (EP) advice because of an increase in EHC needs assessments at the Council and it was actively recruiting more EP’s. It said an EP had been allocated to Y’s case and the report would be sent as soon as possible. The Council apologised for the delay in Y’s assessment.
38. By late October 2023 the Council received reports back from a paediatric consultant, CAMHS and an EP in relation to Y’s EHC needs assessment.
39. In mid-November 2023 Alternative Provision 1 held a review with School 1, a Council officer and Mrs X. The record said Y was receiving one to one tutoring two times a week by Alternative Provision 1 and School 1 offered Y to attend School 1, one day a week. The offer of play therapy was declined by Mrs X because Y already received psychotherapy sessions and Mrs X was unsure if additional art sessions were the correct provision for Y. Y’s mental health was still a concern. At the review meeting a Council officer agreed an independent school, School 2 ‘would be a good fit for Y’ and Y visited School 2.
40. In late November 2023 the Council told Mrs X it decided it would issue Y with an EHC Plan.
41. In late January 2024 Mrs X raised a stage 2 complaint with the Council. Two days later the Council issued Y’s draft EHC Plan. Mrs X was unhappy with the draft report and provided comments to the Council. Email evidence showed the next day she spoke to a Council manager on the telephone. Mrs X said the Council manager promised a multiagency meeting but it did not take place.
42. In early February 2024 the Alternative Provision 1 home tutor stopped attending Y’s home because they said Y had become disengaged and they were not working independently like Y previously had. Mrs X said Y could not engage with the home tutoring because it was not meeting their needs. Mrs X said Y received no provision between February and July 2024. The Council records noted Alternative Provision 1 continued to contact Mrs X weekly and made visits to Y’s home to try and reengage Y with learning but Y was not willing to engage with the support and learning on offer.
43. In late February 2024 email evidence showed Mrs X had a meeting with a Council officer and discussed the Council issuing a revised draft Plan and consultation with educational placements.
44. Between March 2024 and late April 2024 Mrs X contacted the Council approximately eight times asking for a stage 2 response and an update on Y’s EHC Plan. Mrs X remained unhappy with the Council’s progress and complained to us.
45. In mid-March 2024 the Council emailed Mrs X and apologised communication had not improved and said an officer would be in touch and a Council officer held a meeting with Mrs X and said it would provide Y’s revised draft EHC Plan but this was not sent to Mrs X. A Council officer also spoke to Mrs X on the telephone to apologise for the poor communication.
46. In late April 2024 the Council issued Mrs X with Y’s revised draft EHC Plan. The Council started to consult educational placements for Y. In mid-May 2024 Mrs X sent the Council comments on Y’s draft EHC Plan.
47. In late May 2024 the Council sent Mrs X it’s stage 2 response. It apologised for Y’s EHC Plan delays and acknowledged a Council officer had been in direct contact with Mrs X to update her on timescales and did not provide a further explanation. It said the Council had taken steps to make improvements to its timescales for assessments to be completed. It said if Mrs X remained unhappy she could complain to us, which she had already done.
48. In June 2024 a Council panel made a decision Y should attend a specialist independent school placement, School 2.
49. In late July 2024 Y’s placement at Alternative Provision 1 stopped.
50. In early September 2024 the Council issued Y’s final EHC Plan and gave Mrs X her appeal rights to the SEND tribunal. Y’s final EHC Plan named School 2 in Section I. Section F set out the following key provisions:
• appropriately trained adult staff to support with autism, social anxiety and medical conditions and to help with re-engagement strategies;
• support Y to do group work;
• help with social skills in a structured group setting;
• special arrangements for exams;
• changes to timetables and staff to be set out in advance; and
• enhanced transition planning for unfamiliar people and settings.

My findings

Education Health and Care Plan and Section F provision

51. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
52. The Council decided to carry out an EHC needs assessment for Y in mid-June 2023. In line with statutory timescales the Council should have decided within 16 weeks whether to issue Y with an EHC Plan, by early-October 2023. The Council did not agree to issue a Plan until late November 2023 which was a delay of approximately eight weeks. The Council issued Y’s final EHC Plan in early September 2024 which was a delay of approximately 10 months and was fault.
53. The Council had all the relevant professional reports by late October 2023. If the Council had acted without fault it could have issued Y’s final EHC Plan in November 2023. There is uncertainty what provision Y would have accessed in November 2023 but at that point Y was still engaging with Alternative Provision 1 and visited School 2, therefore it is likely Y missed out on the special educational provision set out in their EHC Plan for two and a quarter terms between late November 2023 and early September 2024 when the Council issued Y’s final EHC Plan. Mrs X was also caused an injustice by the faults set out above. The Council has agreed to take action to recognise the frustration caused to Mrs X by Y’s EHC Plan delay.

Alternative Provision

54. From mid-January 2023 the Council put in place alternative provision at Alternative Provision 1 when Y could not attend School 1, which was appropriate. The Council records and Mrs X disagree on how much provision Y was receiving. Although there are records of Alternative Provision 1 and School 1 reviewing Y’s provision there is no record of if and how the Council was involved until a Council officer attended a meeting in mid-November 2023 and there were only email trails of meetings in early 2024 between Mrs X and the Council. However, there is no clear record of how the Council monitored Y’s provision or how it kept it under review. This was fault and caused Mrs X uncertainty.

Communication and complaints handling

55. In 2023 and 2024 Mrs X often had to chase the Council for responses to her emails and phone calls. The Council did not always respond to Mrs X which was fault and caused her frustration and time and trouble. The Council accepted its poor communication in its stage 1 response and apologised. The Council apologised again to Mrs X in March and April 2024 which partly remedied the injustice caused. Due to the prolonged period of poor communication the Council has also agreed to pay Mrs X a symbolic payment to recognise the injustice caused to her.
56. The Council delayed by approximately three months responding to Mrs X’s stage 2 complaint. This was fault and caused Mrs X frustration and time and trouble chasing the Council for a response. The Council has agreed to apologise.

Service improvements

57. The Ombudsman has already made recommendations to this Council on similar cases, including:
• reviewing its alternative provision process and complying with section 19 of the Education Act 1996;
• providing guidance to staff on how to properly consider and record whether to provide alternative provision under its section 19 duty under the Education Act 1996;
• ensuring a robust process is in place to regularly review the situation when it is aware of children out of school and records the actions arising from this review;
• reminding relevant officers of the importance of providing clear communication and responding in a timely manner;
• producing an action plan to demonstrate how it will meet statutory timescales for the EHC Plan review process including what actions the Council are taking to address the delays in allocating cases to Educational Psychologists; and
• providing an action plan for dealing with any continuing backlog of complaints, including any progress it has made to improve its complaint handling timescales to date and reminding staff about good complaints handling.

On this basis no further recommendations were needed.

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Agreed action

58. Within one month of the final decision the Council will:
1. apologise for the frustration and time and trouble caused by the delayed stage 2 response;
2. pay Mrs X a symbolic payment of £2,025 to acknowledge the impact on Y of lost special educational provision between November 2023 when the Council should have issued Y’s EHC Plan and early September 2024.
3. pay Mrs X £300 in total to acknowledge the frustration caused by the Council’s failure to issue Y’s final EHC Plan in line with the statutory timescales, the uncertainty caused by the Council’s failure to keep Y’s alternative provision under review, and the frustration and time and trouble caused by its poor communication.

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Final decision

59. I have completed my investigation finding fault causing personal injustice. The Council has agreed to take action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman