Summary: Mrs X complained about the Council’s delay in finalising her child’s education, health and care plan within the required statutory timescales and failing to provide her child with a suitable education when they were unable to attend school due to health needs. The Council is at fault and it has agreed to remedy the injustice caused by apologising to Mrs X and providing her with a symbolic remedy payment for the delay.

The complaint

1. The complainant, Mrs X, complains the Council:
• Delayed in reassessing her child, Y’s, education, health and care needs;
• Failed to provide Occupational Therapy provision to Y between September 2022 – December 2023; and
• Failed to provide Y with a suitable full-time education throughout 2023.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
4. 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)
5. 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.
6. 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)
7. 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

8. I have not investigated the content or quality of the reports and advice the Council received as part of Y’s reassessment of her needs because Mrs X had a right to appeal the contents of Y’s final EHC Plan to the SEND Tribunal if she was unhappy with the final EHC Plan (Local Government Act 1974, section 26(6)(a), as amended).

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How I considered this complaint

9. I considered Mrs X’s complaint and the information she provided.
10. I considered the information provided by the Council in response to my enquiries.
11. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

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What I found

Relevant law and guidance

Education, health and care (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’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 council can do this.
13. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person. 
• Section G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.

14. 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)  
15. 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. 

Reassessments of EHC Plans

16. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
17. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
18. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the tribunal.
19. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Alternative provision

20. 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.
21. 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)
22. 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)

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What happened

23. Mrs X has a child, Y, who has complex health needs and has an education, health and care (EHC) Plan maintained by the Council. Y was attending mainstream school. Y’s health changed considerably and Mrs X requested a reassessment of needs in June 2022. Mrs X was of the view a specialist setting would be better suited to Y’s needs.
24. On 29 June 2022, the Council agreed to reassess Y’s needs.
25. In July 2023, the Council’s Panel felt that a low stimuli environment within a mainstream school was appropriate for Y but the school said that due to a significant change in Y’s health and medical needs, she was unable to attend school full time because the school was not medically trained to support her. At the time, Y was on a reduced timetable and attending school for one hour a day.
26. The Council recommended an alternative provision provider should be approached to provide guidance on provision support within the school, for the school to make reasonable adjustments and provide Y with a low stimuli environment.
27. A draft EHC Plan was issued on 16 July 2023 and a meeting was held to discuss the Plan on 18 August 2023. On 21 August 2023 Mrs X requested her comments on the draft be considered by the professionals that had provided advice.
28. In November 2023, School 2, a specialist setting that was parental preference was agreed by the Council and it said it would name this setting in Y’s final EHC Plan. Mrs X complained to the Council on the same day about the time it had taken to get to this point and the way the Council had handled the process including the lack of alternative provision.
29. Draft EHC Plans were issued in July 2023 and November 2023.
30. A final EHC Plan for Y was issued by the Council in December 2023.
31. The Council responded to Mrs X’s Stage 1 complaint in December 2023. The Council acknowledged it had exceeded statutory timescales when reassessing Y’s needs and issuing her final EHC Plan. The Council said this was due to a national shortage of EPs and it was working to address the delays families are experiencing.
32. The Council acknowledged Y had not received the OT provision. The Council had tried to source OT privately since May 2023 but without success. The Council apologised for the delay in sourcing an OT privately and for failing to arrange the provision. The Council accepted that it should have undertaken the referrals for private OT when the NHS notified it that it was going to stop providing OT to Y due to the late timescales of the reassessment.
33. Mrs X was unhappy with the Council’s response and requested to escalate her complaint to Stage 2 of the Council’s complaint process.
34. The Council responded to Mrs X’s Stage 2 complaint in March 2024. It said a meeting was held with the school in June 2022 where the Council was notified Y was not accessing full time education, a discussion was had on the suitability of her placement and alternative provision.
35. The Council said that at this meeting, it was stated that Y was unable to access alternative provision due to her ill health and the school agreed to provide education at home. The Council said it had no record of Mrs X telling the Council that this education had not been provided to Y by the school.
36. The Council also said it had considered Mrs X’s comments on Y’s inability to cope with education because of her ill health and it decided catch-up sessions during the Summer in 2022 were not appropriate.
37. The Council commented on the absence of OT provision further by saying that although it had agreed to provide private OT provision it was unable to deliver it and it offered Mrs X a remedy of £1150. The Council apologised again to Mrs X for the service she had received, and it said it had identified how it could learn from this and take action to improve service delivery.
38. Mrs X brought her complaint to the Ombudsman in April 2024 because she was unhappy with the Council’s response to her complaints.

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Analysis

Delay in reassessing Y’s needs and issuing her final EHC Plan

39. We expect councils to follow statutory timescales set out in law, Regulations, and the Code. We are likely to find fault where there are significant breaches of those timescales.
40. The Council should have issued Y’s final EHC Plan within 14 weeks of agreeing to reassess Y. There was a significant delay of 14 months. This is fault.
41. The Council accepts that it did not issue the EHC Plan for Y within statutory timescales. The Council explained the reasons for the delay as the availability of Educational Psychologists (EPs). The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for the service failure. While I accept the reasons for the delay, this is fault.
42. The delay has caused frustration and worry for Mrs X and her family and caused concern that Y was not receiving the support she needed.
43. Although the Council says the delay in issuing the final EHC Plan was due to the delay in receiving the advice from the EP, the EP report was received in June 2023 but the Council did not finalise Y’s EHC Plan until December 2023. I understand this further delay was due to a disagreement about the content of reports from professionals but the Council had these reports since October 2022 with only the EP advice pending. This further delay after receiving the EP advice was avoidable. The delay impacted upon what education Y received, how much education she received and she lost out on the provision she should have been receiving in her EHC Plan to meet her needs from May 2022 to December 2023. It has also caused significant frustration to Mrs X and her family and a significant period of uncertainty.

Failure to provide Occupational Therapy provision

44. It is evident the delay in finalising Y’s EHC Plan due to the time it took to receive the EP’s advice impacted upon the OT provision Y received.
45. I acknowledge the Council approached private OT providers but this was not until May 2023 when the Council was aware since May 2022 that the NHS OT service were reducing the provision it was providing to Y due to having an out of date package of provision. This delay is also fault.
46. The Council has provided Mrs X with a remedy payment of £1150 for the loss of OT provision. The Council has also taken action to remind its SEND Team of their obligation to secure private therapy in a timely manner and as soon as they are notified that provision is no longer in place.
47. I consider this a suitable remedy for the injustice caused.

Y not receiving a suitable education in 2023

48. The Council says it was advised in a meeting on 26 June 2022 that Y was unable to attend school full time due to her medical needs and that the school would provide her with education at home. The Council says there is no record that Mrs X alerted it that this did not occur.
49. Y has an EHC Plan and it is the Council’s duty to ensure the provision outlined in the Plan is being delivered to the child. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. We expect councils to keep part-time alternative provision education cases under review. Instead, the Council has said Mrs X did not alert the Council Y was not receiving a suitable education.
50. We expect councils to be able to evidence they have maintained appropriate oversight over the school’s efforts and been prepared to arrange provision directly, and without delay, if needed. This is particularly important when a placement has concerns they are unable to meet a child’s needs, as was the case with Y. Therefore, I find the Council at fault for failing to maintain appropriate oversight and take steps to satisfy itself the alternative provision provided by the school from July 2022 to December 2023 was available and accessible to Y.
51. However, I cannot say, even on balance, that had the Council acted without fault, it would have arranged alternative provision, what that alternative provision would have looked like, or when it would have been in place by. This is because it is ultimately for the Council to decide when a child needs alternative provision and how to meet that need. The Ombudsman can only look at whether the Council made its decision properly. Nonetheless, I find the fault caused Mrs X and her family significant upset and frustration which the Council should remedy.

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Agreed action

52. To remedy the injustice caused by the above faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise to Mrs X for the identified faults;
• Pay Mrs X £1400 to recognise the 14 month delay in finalising Y’s EHC Plan;
• Pay Mrs X a symbolic amount of £500 to recognise the uncertainty, upset and frustration caused by the identified faults.
53. The Council has also agreed that within three months of this final decision, it will provide the Ombudsman with evidence of the service improvements it said it has made as a result of Mrs X’s experience and the service she received.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. There is fault that caused an injustice to Mrs X and her family. The Council has agreed to our recommendations to remedy this injustice. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman