Summary: Mrs X complains about the Council’s handling of her child, Y’s, special educational needs. She says the Council should have agreed to complete an Education Health and Care Needs Assessment without the need for an appeal. She also says the Council delayed in completing the Assessment and issuing an Education Health and Care Plan. Mrs X also says the Council failed to provide alternative provision for her child. Mrs X says this caused her and her family distress. We have found fault in the actions of the Council for the delay in issuing the Plan and for failing to provide alternative provision for Y. The Council has agreed to pay a financial remedy and implement service improvements.

The complaint

1. Mrs X complains about the Council’s handling of her child, Y’s, special educational needs. She says:

• The Council should have agreed to complete an Education Health Care Needs Assessment without the need for an appeal.
• The Council delayed in the Education Health and Care Needs Assessment (EHCNA) being completed and issuing an Education Health and Care (EHC) Plan.
• The Council failed to provide alternative provision for her child.

2. Mrs X says this caused her and her family 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. 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.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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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What I have and have not investigated

9. The courts have established that if someone has appealed to the SEND 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. This means that I cannot consider the first element the complaint about the Council’s decision not agreeing to complete an EHCNA.
10. I am therefore only considering Mrs X’s complaints about the delay in completing the EHCNA, issuing an EHC Plan and the provision Y received back to May 2022 when the Council were made aware Y was not attending school.

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How I considered this complaint

11. I have read the comments and documents provided by Mrs X.
12. I have considered the documents provided by the Council in its response to my enquiries.
13. Both Mrs X and the Council were invited to comment on my draft decision. Any comments received were considered before a final decision was issued.

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What I found

14. 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);  

Alternative provision

15. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
16. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
17. 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”.
18. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
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 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)
21. 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’)
22. 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 (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)  
23. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

What happened

24. Mrs X says Y stopped attending school in February 2022. The school marked Y as authorised absent until July 2022.
25. Mrs X sought an EHCNA in May 2022 and told the Council that Y had not been in school since February 2022. The Council replied to Mrs X within a few days to acknowledge the EHCNA request.
26. The Council told Mrs X it was not going to complete an EHCNA for Y in June 2022 and Mrs X appealed this decision to the SEND Tribunal shortly after.
27. The SEND Tribunal decided that an EHCNA should take place and issued a decision in January 2023.
28. Mrs X raised a complaint with the Council in February 2023. The Council responded to the complaint in May 2023 and apologised for the delay in the EHCNA process. The Council said there had been a delay in the allocation of Y’s assessment to an Educational Psychologist.
29. Mrs X escalated her complaint in May 2023.
30. The Council responded to the complaint in October 2023 and said it had not met statutory timescales in completing the EHCNA or issuing the EHC Plan. The Council also said it had not provided appropriate support to Y to ensure they were receiving appropriate education.
31. The Council recommended a financial remedy to Mrs X of £3,600 to recognise three missed terms of education from September 2022. The Council also recommended a £250 payment for the delay in responding to the complaint. Mrs X has said she received this remedy.
32. The Council issued a final EHC Plan for Y in January 2024.
33. Mrs X says the Council put in place no provision for Y until April 2024.

Analysis

Education, Health Care Plan

34. The SEND Tribunal issued a decision in January 2023 saying an EHCNA needed to take place.
35. The Council should have issued Y’s final EHC Plan by 31 May 2023, but it did not issue it until mid-January 2024. This is fault and has caused both Mrs X and Y distress and frustration.
36. I understand the delay in issuing the EHC Plan was due to a delay in the allocation of an Educational Psychologist to Y’s case. This is an issue affecting many Councils nationally. However, as the Council has not issued Y’s EHC Plan within the statutory timescales this is a service failure.

Alternative provision

37. Y stopped attending school in February 2022.
38. The Council says it was told Y was not attending school in September 2022. However, Mrs X requested an EHCNA in May 2022 which stated Y had not been in school since February. The Council wrote to Mrs X to acknowledge this in May 2022. The Council were therefore aware in May 2022 that Y was not attending school.
39. I have not received any evidence to show the Council arranged any alternative provision for Y between May 2022 to September 2022 in line with its Section 19 duties. This is fault and would have caused Mrs X and Y distress. Y missed out on provision in this period.
40. The Council has already accepted provision was not in place for Y from September 2022 for three terms. This is fault. The Council has paid Mrs X a remedy for this period. The remedy paid is in line with our guidance and as such I have not issued a further remedy for this period.
41. I have not received any evidence to show that any alternative provision was in place for Y between September 2023 and the final EHC Plan which was issued in January 2024. This is fault and would have caused distress and frustration to Mrs X and Y. Y also missed educational provision between these times.
42. The Council issued Y’s final EHC Plan in January 2024, but Mrs X says no provision was in place for Y in line with EHC Plan until April 2024. I have not received any evidence to show Y received any provision within his EHC Plan between January 2024 to April 2024. This is fault and would have caused Mrs X distress and frustration and Y to miss provision.
43. In another complaint we asked the Council to remind staff about its responsibility under Section 19 provision, so I have not made a recommendation about this.

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Agreed action

44. Within one month of a final decision the Council should:

• Write to Mrs X to apologise for the faults identified.
• Pay Mrs X £800 to recognize the delay in issuing Y’s EHC Plan. This is calculated at around £100 per month for each month of the delay.
• Pay Mrs X £300 for the provision Y missed between May 2022 and July 2022.
• Pay Mrs X £2,400 for the provision Y missed between September 2023 and April 2024. This is calculated at roughly £1,200 per term missed.
• In total, pay Mrs X £3,500 as explained above.

45. Within two months of a final decision the Council should:

• Provide or produce a plan to confirm the actions taken to ensure EHC Plans are issued within statutory timescales including what actions the Council are taking to address the delays in allocating cases to Educational Psychologists.

46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have found fault in the actions of the Council for failing to issue Y’s EHC Plan within statutory timescales and for failing to put alternative provision in place for them.

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Investigator's decision on behalf of the Ombudsman