Summary: We have completed our investigation. The Council was at fault. It delayed deciding Y’s (Mrs X’s child) special educational needs support and Y was without education for 5 months. The Council did not communicate with Mrs X properly, causing distress and undue confusion for Mrs X and her family. The Council should apologise to Mrs X and make a payment to her to recognise the loss of education for Y and the undue distress caused.

The complaint

1. Mrs X complains about how the Council dealt with the education, health and care (EHC) needs assessment for her child that led to a final EHC Plan being issued. She is unhappy about:

• delays at every stage,
• the content of the EHC Plan,
• poor communication between her and the Council,
• how the Council dealt with her complaints.

2. She says the Council also failed to provide alternative provision for Y.
3. Mrs X says getting an EHC Plan put in place for her child has been stressful. She says it has caused her family distress, time, and trouble. Mrs X is concerned that her Y’s current EHC Plan does not reflect their needs and will not support their transition to college.

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The Ombudsman’s role and powers

4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
9. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
10. 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.
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
12. 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

13. I have investigated Mrs X’s complaint about the delay to issue her child’s EHC Plan, from August 2023 onwards, and about how the council communicated with her during this time.
14. I have investigated the offer of alternative provision to Mrs X’s child, by the Council, from May 2023 – February 2024 (when the final EHC Plan was issued).
15. I have investigated how the Council dealt with Mrs X’s complaint and general communication maintained between the Council and Mrs X between May 2023 – February 2024.
16. I have not investigated conduct of Council staff because this is a personnel issue.
17. I have not investigated the Council’s decision not to carry out an EHC needs assessment for Mrs X’s child in May 2023. This is because Mrs X had a right of appeal to the SEND Tribunal it would have been reasonable for her to use.
18. I have not investigated Mrs X’s complaint about the content of her child’s EHC Plan, including how the Council used the private reports paid for by Mrs X. This is because Mrs X has a right of appeal to the SEND Tribunal about these matters that it would have been / is reasonable for her to use.
19. I have not investigated matters post March 2024. Mrs X complained to the Council in February 2024 and her complaint was investigated and concluded in March 2024.

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How I considered this complaint

20. I considered the complaint and information provided by Mrs X.
21. I made written inquiries of the Council and considered its response along with relevant law and guidance.
22. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
23. Mrs X and the Council had an opportunity to comment on the draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plan

24. 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.
25. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan.

26. 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.

27. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal. They do not have to agree to attend mediation.

28. The SEN Regulations (2014) say that where mediation takes place and the Council decides it will carry out an EHC needs assessment, the following timeframes apply:
• the Council should notify the parents or child/young person within 2 weeks of the mediation date that a reassessment will take place,
• where the Council decide to issue an EHC Plan, it should issue the final version as soon as possible, and within no longer than 14 weeks of the date of mediation.

Alternative provision

29. 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.
30. 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”.
31. 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’)
32. 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])
33. 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

What happened

34. Mrs X’s child, Y, is autistic and has various health, social and developmental support needs. Mrs X says Y has always found school difficult.
35. In May 2023, when Y was in Year 10, Y stopped attending school. Mrs X reports a decline in Y’s mental and physical health and describes her child being unable to go to school because of this.
36. In May 2023 Mrs X asked the Council to carry out an EHC needs assessment for Y. She also asked the Council to provide alternative provision for Y because Y was no longer attending school.
37. Within 6 weeks the Council told Mrs X it would not be carrying out an EHC needs assessment. The Council told Mrs X it thought Y “has or may have SEN however do not consider that it is necessary for Special Education Provision to be made in accordance with an EHC Plan and therefore the LA do not agree to assess”.
38. Mrs X and the Council started mediation.
39. Information shared by professionals at a mediation meeting in July 2023 led the Council to decide it would assess Y. The private speech and language, and psychological assessments organised and paid for by Mrs X informed this, along with information about how the school were supporting Y.
40. At the start of August 2023, the Council told Mrs X it would carry out an EHC needs assessment for Y.
41. In mid-August the Council contacted Mrs X to arrange a collaborative outcomes (COMS) meeting. This meeting is part of the EHC needs assessment. It is designed to help families, schools and other professionals in the child’s life work together.
42. Mrs X says she could not get in contact with her SEND caseworker during August and September 2023.
43. Mrs X raised her concerns with the Council about this. She spoke to a senior member of the SEND Team about the lack of communication from her caseworker and the lack of alternative provision in place for Y. The Council told Mrs X the caseworker had left the team. A new caseworker was allocated.
44. Mrs X was told Y’s case would be heard at panel within one to two weeks.
45. The Council informed Mrs X at the end of September it must defer the panel. Mrs X raised her concerns about this, and about the lack of alternative provision offered to Y with the SEND Service Manager.
46. The newly allocated caseworker contacted Y’s school and tried to keep in regular discussion with it.
47. The case worker and Mrs X kept in regular contact during early October 2023. The caseworker clarified how the Council would use information gained about Y from professionals involved in Y’s private healthcare. The case worker explained what the Council may or may not pay for. This caused further frustration and confusion for Mrs X.
48. The COMS meeting took place mid-October 2023. Mrs X shared the harmful impact the lack of education was having on Y’s mental health. Mrs X was unhappy about the conduct of a Council officer and reported this to the Council on the same day.
49. A few days later the Council confirmed it would issue an EHC Plan for Y.
50. The Council sent a draft EHC Plan to Mrs X at the start of November 2023. It confirmed consultation was happening with alternative provision providers and places for Y to enrol for Year 12 education were being explored.
51. There was confusion at the end of November about why Mrs X’s preferred Year 12 placement said it could not meet Y’s needs. Mrs X stressed her growing concerns about the lack of alternative provision and the impact this was having on Y’s mental health.
52. Provider A contacted Mrs X at the start of December to tell her it was ready to provide alternative provision to Y. The Council said it was waiting confirmation from school to start this provision.
53. The school informed Mrs X it was waiting for the Council to take the application for Provider A provision to panel. Only then could tutoring start. Mrs X communicated with both parties, what the other had said, to gain clarity.
54. The Council said that it assigned funding for Y for an ‘additional bespoke support package’ to start mid December 2023.
55. Mrs X expressed frustration the caseworker waited for updates from prospective Year 12 placement providers, rather than asking for updates herself.
56. Towards the end of December 2023, Mrs X shared with the Council further confirmation of Y’s autism diagnosis and continued to raise her concerns about the lack of education for Y.
57. In mid-January 2024 the Council shared an amended draft EHC Plan with Mrs X. It said it will not be amending the plan further. The Council recognised that Y was in an important transition year.
58. At the end of January, a placement for Year 12 for Y was still not agreed.
59. At the beginning of February 2024 Mrs X complained formally to the Council.
60. A few days later the Final EHC Plan was issued to Mrs X. Mrs X was unhappy with parts of the content and the lack of information about Y’s autism diagnosis.
61. Mrs X complained the Council did not address her point about section I in its formal complaint handling. Mrs X says the Council gave her assurances it would amend Section I as per her preference, and it did not.
62. Mrs X’s complaint to the Council concluded in March 2024. The Council upheld Mrs X’s complaint ‘due to errors made and delays experienced.’ It acknowledged some fault related to staff not being aware of internal procedures. The Council told Mrs X it had reminded staff about internal policy and procedure. However, no remedy was offered to Mrs X or Y other than an apology.

My findings

63. I will set out my findings on the complaint in the order they appear in paragraph one.

Delay

64. Matters discussed in this decision span Year 10 – Year 11 for Y. These are important transitional school years.
65. The Council decided to assess Y in July 2023. The Council decided to issue an EHC Plan in October 2023. The final EHC Plan was issued in February 2024.
66. There were 28 weeks between the date of the mediation meeting, where the Council decided to reassess Y, and the date of issuing the final EHC Plan. There was a delay of 14 weeks in issuing the final plan. This was fault by the Council.
67. In Y’s case, Mrs X reports delay in securing a college placement due to the delays in issuing the final EHC Plan. I cannot comment on the speed at which the placement settings replied to the Council. However, it is likely having a final EHC Plan in place as early as possible would have assisted the Council to discuss Y’s needs with prospective Year 12 placements.
68. The Council says the only reason for the delay was the educational psychologist being on maternity leave. It says this meant it took longer to gain advice about the amendments requested by the family.
69. The Council say it set up alternative provision sooner, because of this.
70. The Council’s statutory duty to provide alternative provision is explained in paragraph 29. Y stopped going to school in May 2023. Delay in finalising an EHC Plan would not be a sufficient reason for setting up alternative provision. Also, the alternative provision started 5 months after Y stopped going to school. Y suffered a loss of education of 5 months due to this delay.
71. We have issued several decisions since May 2023 about delay in issuing EHC Plans. This suggests systemic failure in the Council’s approach to issuing EHC Plans in line with the timeframes set out in relevant guidance.
72. The delay in issuing Y’s final EHC Plan likely had an impact on securing a Year 12 placement. Mrs X also suffered injustice because until the Council issued the final plan her appeal rights were inactive.

Communication and complaint handling

73. The Council recognised its failings in communicating satisfactorily with Mrs X and allocating her a new caseworker in September 2023. A senior officer apologised to Mrs X. Soon after the caseworker was allocated, panel was deferred, following Mrs X being told it was going to take place.
74. The reason panel was deferred is not clear, and caused frustration and confusion for Mrs X.
75. Following a new caseworker being allocated to Mrs X in September 2023 it seems communication was frequent, and the caseworker was reliable. When Mrs X emailed the Council for an update, she received a response within a few working days.
76. Further fault by the Council was admitted during the Council complaint response. The alternative provision Provider A could not start working with Y until it was agreed at panel. Therefore, the original referral for Y should not have been made to Provider A by the caseworker because panel had not yet confirmed the placement. The new caseworker did not know this. This fault led to undue time, trouble, and confusion for Mrs X and for Y. The Council have apologised to Mrs X for this.
77. Mrs X asked to see copy of the placement consultation documents completed with prospective Year 12 placement providers. The Council do not have to share copy of the consultation documents with Mrs X. However, it should have clearly explained this to her. Not responding to Mrs X’s request was an example of poor communication between the Council and Mrs X and added to Mrs X's frustration.
78. Section I of the EHC Plan is appealable. The Council do not have to consider it within its formal complaint handling.
79. The formal complaint handling that occurred between February and March 2024 took place without delay and concluded quickly. However, the Council did not offer Mrs X any remedies apart from an apology. We would expect Councils to refer to our Guidance on Remedies when trying to put things right for complainants.

Alternative provision

80. The Council did not set up alternative provision for Y until December 2023. It says school is responsible for alternative education before an EHC needs assessment takes place. This is inaccurate and was fault by the Council.
81. As soon as the Council learns of a child being out of school it has a duty to consider whether the child needs a form of alternative provision. If the reason a child is out of school is about their health, the Council should act to understand this. For example, a Council might speak to a child’s GP, or health professional to understand why a child’s health is stopping them from going to school.
82. Mrs X organised for the private clinicians treating Y to attend the mediation meeting in July 2023. There is no evidence the Council sought advice or information from a health professional involved in Y’s care before this.
83. This is fault by the Council and has likely had an impact on the alternative provision offered to Y during this time.
84. The Council decided to fund alternative provision from December 2023 – July 2024.
85. It is likely therefore, that had the Council properly considered whether Y needed alternative provision in May 2023, it would have agreed it.
86. This suggests Y suffered a loss of five months of alternative provision, between June – July 2023, and September – November 2023.

Service Improvement

87. We are aware, from other investigations completed this year, the Council’s SEND service has been under pressure. In part, delay experienced by Mrs X and Y will likely have been because of service failure.
88. We have sought assurances from the Council that it has a plan in place to put more resource into its SEND service that will cause a decrease in delays and complaints about this issue.
89. In the complaint 23 010 016 the Council agreed to provide an update of lessons learnt and changes made following the Council’s review of its EHC Plan process. This was to ensure concerns about provision and placement from parents or children are responded to and any agreed steps are actioned without delay. In August 2024 the Council provided the Ombudsman with an update. It shared how it has implemented changes across the Council SEND Team and how this is reflected in an updated SEND strategy.
90. In several other complaints investigated in the last twelve months the Council has been at fault for failing to provide alternative provision. In September 2023 we issued a decision about the complaint 23 000 293. We asked the Council to either write a policy, or update its current one, that addresses how it will deal with requests for alternative provision for children with special educational needs. The Council’s ‘Children not in school' policy was shared with LGSCO. Council staff received training about this, and we were satisfied with the Council's actions.

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Agreed action

91. To remedy the injustice caused by the Council, to Mrs X and Y, within four weeks of a final decision the Council has agreed to take the following action:
• Apologise to Mrs X in line with our guidance on Making an Effective Apology. 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 Mrs X £2,250 to recognise the loss of education for Y from May 2023 – December 2023, and the delay in issuing the EHC Plan by 14 weeks. I have recommended a payment towards the higher end of our scale because matters complained about take place in important transitional years for Y.
• Pay Mrs X £250 to recognise the distress caused by the Council to Mrs X in its failings to communicate with her properly and consistently.
• In total, the Council should pay Mrs X £2,500.

Service Improvement

92. Within eight weeks of a final decision the Council should:
• explain the Council’s plans to review the policy ‘Children not in school,’ one year on,
• show how it considers children out of school due to health needs,
• ensure the policy reflects the Council’s duty (rather than a school’s) to provide alternative education, whether an EHC Plan is in place, or not, and
• inform the Ombudsman about the steps it has taken to ensure that all new staff members are informed about the policy, that the policy is regularly referred to in practice discussions and in decision-making.
93. We recognise it will take the Council some time to address the failings about delay in issuing EHC Plans and how it communicates with families. The Council are now going to implement its new SEND strategy. A period of implementation and evaluation will take place. We will monitor the effectiveness of the Council’s actions following our recommendations in the complaint 23 010 016.
94. The Council should provide us with evidence it has complied with the above actions.

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Final decision

95. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused to Mrs X and her child Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman