Summary: Mrs X complains the Council delayed issuing Child Y’s Education, Health and Care Plan and failed to arrange alternative provision. The Ombudsman finds fault with the Council for the delay in issuing the plan, and the delay in accepting it had a Section 19 duty to provide alternative provision. The Council has agreed to pay financial remedies in recognition of the injustice caused.

The complaint

1. Mrs X complains the Council unreasonably delayed carrying out an Education, Health and Care Needs assessment, and delayed issuing the Education, Health and Care Plan for her child.
2. Mrs X also complains the Council has failed to provide alternative education for her child despite them being medically unable to attend the named placement.

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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 cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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How I considered this complaint

8. I considered Mrs X’s complaint to the Council and information she provided. I also considered information provided by the Council.
9. I invited the Council and Mrs X to comment on my draft decision and considered any comments received.

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What I found

Legislation and guidance

Education, Health and Care Plans (EHC Plans)

10. 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.
11. 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:
12. 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.
13. 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.
14. 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.
15. Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
16. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice

Alternative provision

17. 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.
18. 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))
19. 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)

Statutory guidance for children who cannot attend school because of health needs

20. Where possible, the child’s health needs should be managed by the main school so that they can continue to be educated there with support and without the need for intervention from the Council. However, as soon as it is clear that the main school can no longer support the child’s health needs and provide suitable education, the school should speak to the Council about putting alternative provision in place.
21. There is no legal deadline by which Council’s must arrange education for children with additional health needs. However, as soon as it is clear the child will be away from school for 15 days or more because of their needs, the Council should arrange suitable alternative provision.

What happened

22. Mrs X requested an EHC needs assessment for Child Y from the Council in May 2022. In her request, she told the Council Child Y was still registered at a mainstream school but was out of education due to being medically unfit. She also told the Council that she was awaiting the outcome of a referral to the Hospital and Outreach education team for alternative provision to support Child Y.
23. In her letter Mrs X included information that Child Y was seen by CAMHS in February 2022. The CAMHS summary said that Child Y was struggling to attend school due to their medical conditions. It recommended the school could refer to the Hospital and Outreach education team to support Child Y. The school completed the referral in July 2022. The Hospital and Outreach education service was a registered alternative provision placement.
24. The Council considered the request for a needs assessment and at first declined to assess. This decision was overturned in August 2022 and the Council agreed to carry out the assessment.
25. The Council met with Mrs X and Child Y in September 2022. During the meeting, it was noted that Mrs X was still awaiting the outcome of the referral to the Hospital and Outreach Education team.
26. Also in September 2022, as part of the EHC needs assessment, the Council contacted the School and asked what education was available to Child Y and what support had been explored. The School told the Council it had applied to the Hospital and Outreach team for alternative provision and was awaiting provision to start.
27. In Oct 2022 Mrs X wrote to the Council and advised she was still awaiting the outcome of the referral and that Child Y was without education meanwhile.
28. Mrs X complained to the Council in October 2022. Mrs X was concerned that she had not yet been contacted by the services needed to provide information as part of the needs assessment process. She felt this would have an impact on the deadlines for completing the assessment.
29. The Council did not respond to Mrs X’s stage one complaint.
30. In November 2022, the Hospital and Outreach education team tried to contact the School to discuss potential provision for Child Y to reintegrate them into school. The School discussed this with Mrs X but both felt the package offered could not meet Child X’s needs.
31. The Hospital and Outreach team says it received no response from the school. It followed up and advised if it did not hear further, it would close the referral on the assumption the School could provide enough support. It closed the referral for support in December 2022 due to non-engagement from the school.
32. In January 2023, as part of the EHC needs assessment process, Mrs X submitted a request for Education other than at school (EOTAS) for Child Y. Mrs X asked the Council to deliver this via a personal budget for Child Y.
33. In March 2023, Mrs X logged a new complaint to the Council that it had not responded to her previous complaint in October 2022 and that Child Y remained without education.
34. In March 2023, the School told the Council it did not feel the proposed alternative provision package from the Hospital and Outreach team would meet Child Y’s needs and therefore it had been rejected.
35. The EHCP caseworker for Child Y tried to follow up again with the Hospital and Outreach education team about the result of the referral. The Hospital and Outreach team told the Council the referral was closed due to non-engagement from the school on the suggested provision.
36. On 29th March 2023, the Council issued the final EHCP plan.
37. On 2nd May 2023 the Council responded to Mrs X’s complaint at stage two. It apologised for not responding at stage one, but said it could not agree EOTAS with a personal budget as there was no medical advice for this. It therefore advised Mrs X to work with the Hospital and Outreach education team to come to an arrangement.
38. The Council met with Mrs X on 9th of May to discuss the contents of the EHCP and the refusal of EOTAS.
39. The Council decided to reconsider the request for EOTAS and a personal budget. The request was agreed and amended in the EHCP. Mrs X received a personal budget for EOTAS from June 2023.

Analysis

Delay in issuing the plan

40. The Council has recognised there was a delay in issuing the EHCP and said this was because of a delay in the Educational Psychologist providing advice.
41. From the point of agreeing to carry out an assessment, the Council had 20 weeks to complete the assessment and issue a plan.
42. The Council delayed issuing the plan by 15 weeks. This was a service failure by the Council causing injustice to Child Y and a delay of appeal rights to Mrs X.

Alternative provision

43. Part of Mrs X’s complaint is the Council failed to deliver alternative provision to Child Y when they were medically unfit to attend school.
44. The Council has said the school completed a referral in July 2022 which the records support. It also says it received confirmation the Hospital and Outreach education team could provide support to Child Y from September 2022. Therefore, it says it had no reason to believe it owed an alternative provision duty at that point.
45. The records from the Hospital and Outreach education team show it tried to discuss potential provision with the School in October and November 2022, but did not receive a response. Therefore, the referral and offer of potential support was closed. The records do not show provision was agreed and available for Child Y to access.
46. It would have been reasonable to allow some time from September 2022 for potential provision to be finalised and put in place by the Hospital and Outreach education team. However, the Council should have kept this under review as part of the EHC needs assessment process. Instead, it did not follow this up until March 2023 despite Mrs X raising a complaint. If the Council had kept this under review, and responded to Mrs X’s initial complaint, it would have established sooner there was no provision in place.
47. There is fault by the Council in failing to show how it considered whether it had a section 19 duty to Child Y between December 2022 and May 2023. It was clear that Child Y was not in school and the Council was aware there was no package from the Hospital and Outreach team in place.
48. I accept the Council must explore whether other suitable provision is available, and it did this by following up with the referral. However, the Council should have done this before March 2023. This was fault by the Council, and had it acted without fault, it would have established that an alternative provision duty was owed to Child Y from December 2022.
49. In response to the Ombudsman’s enquiries, the Council has accepted that it had the information that Child Y was medically unfit to attend school in person. It therefore recognised it should not have told Mrs X to work with the Hospital and Outreach team to integrate Child Y to school in its complaint response in May 2023.
50. For the reasons set out above, I find fault with the Council for not considering sooner whether it had an alternative provision duty to Child Y. As a result, Child Y was without the education they were entitled to during a key part of their education and development.
51. The Ombudsman has already investigated a complaint about EOTAS and alternative provision with the Council in the last year. The Council already agreed to review its policies and procedures where it has a duty to children who cannot attend school. It also agreed to finish developing an EOTAS policy. Therefore, I am not recommending further service improvements.

Complaint handling

52. The Council has recognised it did not respond to Mrs X’s first complaint and apologised for this. It said it would review the process to ensure it is not repeated.
53. It also accepted the delays in the EHCP being issued but did not consider the Ombudsman’s guidance on remedies when considering a remedy.
54. There was fault in the Council’s handling of Mrs X’s complaint, causing Mrs X distress.

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Agreed action

55. Within four weeks the Council has agreed to

• Write to Mrs X and Child Y and apologise for the fault identified.
• Pay Mrs X £400 in recognition of the delay in issuing the EHCP. This is calculated at approximately £100 per month.
• Pay Mrs X £100 in recognition of the poor complaint handling.
• Pay Child Y £4800 in recognition of missed alternative provision. This is calculated at £2400 for approximately two terms, and considers Child Y’s age, the key stages of development, and that they were medically unfit to attend school in person.

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

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Final decision

57. I have completed my investigation. I find fault with the Council for its delay in issuing the EHC plan, and for delaying its section 19 duty to arrange alternative provision for Child Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman