Summary: Mr Y complains the Council failed to ensure his child, D, received a suitable education once they stopped attending primary school. He also complains about delays in issuing D’s Education, Health and Care plan due to a lack of Educational Psychologists. We find fault causing injustice and the Council has agreed to apologise and pay £950 to Mr Y. There was also some delay in arranging alternative provision for D which the Council has agreed to acknowledge with a symbolic payment of £350. We do not find fault in the other parts of Mr Y’s complaint because D received provision which the Council decided was available and accessible.

The complaint

1. Mr Y complains his daughter has been out of education since October 2023, and the Council has not provided suitable alternative provision.
2. He also complains the Council has delayed in issuing an Education, Health and Care (EHC) plan due to a shortage of Educational Psychologists (EP)
3. Mr Y says that both the failure to provide alternative provision and the delay in finalising the EHC plan has caused his daughter to fall behind academically and has impacted on her emotional and social development.

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The Ombudsman’s role and powers

4. 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)
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) 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)

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How I considered this complaint

7. I considered evidence provided by Mr Y and the Council as well as relevant law, policy and guidance.
8. Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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 found

Alternative provision

10. Children of compulsory school age are entitled to a full-time education suitable to their age, aptitude and any special educational needs they have. Sometimes education may be provided partially at school and partially at another educational setting or through education otherwise than at a school in line with section 19 of the Education Act 1996 or section 42 or 61 of the Children and Families Act 2014.
11. For children who have received permanent exclusions, the Council must arrange suitable full-time education for the pupil to begin from the sixth school day after the first day the permanent exclusion took place.
12. Statutory government guidance ‘Working together to improve school attendance’ sets out the circumstances in which a child may receive less than full-time education through a part-time timetable. The guidance says that part-time timetables should have:
• the agreement of both the school and the parent;
• a clear ambition and be part of a wider reintegration plan;
• regular review dates including the pupil and their parents; and
• a proposed end date but can be extended as part of the regular review process.
13. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them 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)

EHC assessments and plans

14. A child or young person with special educational needs may have an 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.
15. 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);  
• 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.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
  (Delete irrelevant bullet points)

16. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

17. Amongst other points, there is a right of appeal to the Tribunal against the decision not to assess or issue an EHC plan, the description of a child or young person’s SEN, the special educational provision specified, and the school or placement named in Section I.

Summary of key events relevant to the complaint

18. Mr Y’s daughter, whom I will call D, stopped attending her mainstream primary school in October 2023. At the time, D had a diagnosis of ADHD and had difficulty regulating her emotions. D was also waiting for an Autism assessment. In the previous school year, records show that D’s attendance was 94%.
19. On 4 October 2023 the Council received a request to assess D for an EHC plan. The Council responded on 16 November 2023 to confirm its decision to assess D and issue a plan.
20. The Council received a referral from D’s school on 15 December 2023 with a ‘medical request’ to provide alternative provision under Section 19 of the Education Act.
21. Three days later the Council asked D’s school for further information which the school sent on 9 January 2024. This demonstrated:
• CAMHS [Children and Adolescent Mental Health Service] involvement and an offer of a workshop and parent group.
• Report stating that D needed alternative provision.
• School attendance at the point of referral was 37%.
22. The Council emailed the school to arrange a meeting to discuss D’s case. Attendees agreed upon the earliest available date of 6 February 2024.
23. The meeting went ahead as planned. All in attendance agreed that D should receive support to reintegrate into school using a part-time timetable and technology such as a learning robot. This would enable D to stay virtually connected with her class whilst learning from home.
24. To support D’s education, the Council and school agreed to keep D’s provision under review with regular meetings and an action plan with the following objectives:
• Create a bespoke timetable for D.
• Unpick barriers to attendance and support D to build relationships with school staff.
• School to complete a referral to SENDIASS and ‘Community 360’.
• School to commission an alternative provision placement at a local farm for one day a week.
25. Another meeting to review D’s case went ahead on 26 March. The following areas were discussed:
• D attended some lessons with the learning robot, but parents raised concerns about D’s engagement and her lack of social interaction.
• The school carefully planned D’s timetable to ensure she had support from staff she had a good relationship with.
• The family experienced some technical issues with the robot which were resolved following adjustments to the WiFi settings.
• School assured that the aim of the robot was to support a graded return to the classroom.
• Mr Y raised concerns about the timeframe for D’s EHC needs assessment.
• The ‘SEN Engagement Facilitator’ started working with D and made a home visit.
26. Following the meeting, D’s action plan was updated to reflect the following:
• School to continue using the learning robot in small group lessons with D’s friends and trusted members of school staff.
• D to attend an alternative provision placement every Friday to support her social interaction in an environment she enjoys.
• School to arrange home visits and visits to the park with D and her trusted member of staff to further build on positive relationships with the school.
• School to focus on creating further opportunities with D’s school friends.
• School to create social stories to help support D to physically attend.
• School to create a timetable to help with D’s daily routine.
• School to contact the Council about D’s EHC needs assessment and to discuss funding for interim provision.
27. Records from April 2024 show that D asked to go into school. She attended for an hour each Tuesday, stayed for lunch on Wednesdays and for 30 minutes on a Friday morning before going to the alternative provision for four hours.
28. Following a period of part-time attendance, the school issued a permanent exclusion on 14 May 2024 after D threatened physical harm against a teacher.
29. Records show that Mr Y called the Council and left a voicemail message on 14 May to say that D had received a permanent exclusion. The officer who received the voicemail message was on annual leave until 20 May. Mr Y also emailed senior officers at the Council on 14 May to inform them of D’s exclusion.
30. The Council attended a review meeting on 21 May. The school confirmed its decision to maintain D’s permanent exclusion. The school sent the permanent exclusion paperwork to the Council on the evening of 29 May 2024.
31. The Council contacted Mrs Y by telephone on 4 June. Mrs Y said she wanted D to return to the school. The Council told Mrs Y it had made a referral to a provider of online tuition for English, Maths and Science for 15 hours per week. The Council explained this was an interim arrangement.
32. The school agreed to continue funding D’s Friday session at the alternative provision until the permanent exclusion process had concluded.
33. Mr and Mrs Y appealed the school’s decision to permanently exclude D. On 25 June the Governing Body decided to overturn the exclusion and ordered the school to readmit D.
34. On 9 July the Council attended a meeting at the school to discuss a re-integration plan for D. It was agreed that D would attend school from the following week for two sessions as part of a gradual reintegration.
35. D attended school on 15 July for 30 minutes to meet her teacher and visit the classroom. On the second session D stayed for an hour. The school and Council agreed for D to start slowly with one hour attendance per week.
36. The EP issued their report for D’s EHC plan on 2 October 2024.
37. The Council issued D’s final EHC plan on 3 December 2024. This named the mainstream primary school where D remains on roll. The plan included some provision in Section F to support D at school, such as working with a group of trusted adults, access to quiet ‘safe’ spaces and weekly sessions with a learning mentor.
38. Mrs Y has lodged an appeal against Section I of the plan because she feels the mainstream school cannot meet D’s needs. At the time of writing this statement, Mrs Y is waiting for the appeal to be heard.

Was there fault in the Council’s actions causing injustice to Mr and Mrs Y and D?

39. We find fault with the Council because:
• The Council received the request to complete an EHC needs assessment on 4 October 2023. The statutory timescales stipulate that any resulting plan must be issued within 20 weeks of the request. In this case, that deadline was 22 February 2024. The records show the Council issued D’s plan on 3 December 2024. This amounts to almost 41 weeks of delay. The Council explained this delay was due to the shortage of EPs. The Council should make a payment of £950 to Mr and Mrs Y in recognition of the impact of this delay.
• The Council received notification of D’s prolonged absence on 15 December 2023. The records show the meeting to discuss D’s case went ahead five school weeks after the Council received the notification. The evidence does not show what measures the Council took in that period to satisfy itself that D had access to a full-time or equivalent education, in line with its Section 19 duties. This fault has created uncertainty because we cannot say, on balance, whether the Council would have arranged alternative provision in this period had it acted without fault. The Council should remedy this with a symbolic payment.
• The Council had a statutory duty to arrange educational provision for D from the sixth day after her permanent exclusion. The records show the Council was notified of D’s exclusion on 14 May. It had a duty to arrange provision for D from 22 May. Instead, the Council arranged online tuition from 5 June. When taking into account the school holidays, D missed five school days of provision. The Council should make a payment to Mr and Mrs Y for D’s educational benefit.
40. I do not find fault in the other areas of complaint for the following reasons:
• From February 2024 all parties agreed upon a part-time timetable and a re-integration plan with carefully planned steps to help support D’s attendance at school. This included the use of a learning robot to help D engage with lessons virtually. In my view, there is no failure to arrange Section 19 provision between February and May 2024 because the statutory guidance says the duty is not triggered if the child is receiving support from their school to increase their attendance. Records show the support was subject to regular meetings to review D’s case with action plans updated accordingly.
• Between 5 June and 15 July 2024, the Council arranged for D to receive 15 hours of online tuition each week. In addition, the school continued to fund four hours of alternative provision each week at a local farm. In my view, the 19 hours of weekly provision was comparable to a full-time offer due to the small size of the teaching groups.
• From 15 July 2024 D had access to full-time education at the primary school following the governing body’s decision to overturn her exclusion. The records show that D has attended on a part-time basis. While Mrs Y initially wanted D to return to the school, she now feels it cannot meet her needs. This is subject to an ongoing appeal and a matter which the SEND Tribunal will decide.
• The Council has confirmed that the funding allocated to D’s EHC plan has been backdated to the 20-week mark. This means that D’s school has funding in place to help with any ‘catch up’ provision.

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Action

41. Within four weeks of our final decision, the Council has agreed to:
• Pay £950 to Mr and Mrs Y to recognise the distress, frustration and uncertainty caused by the nine-and-a-half-month delay in issuing D’s EHC Plan due to a shortage of EPs. The Council should also issue a written apology. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
• Pay £350 to Mr and Mrs Y for D’s educational benefit. This is in recognition of the uncertainty caused by failing to consider its Section 19 duties in January 2024 and the short delay in arranging alternative provision after D’s permanent exclusion in May 2024.
42. The Council will provide us with evidence it has complied with the above actions.
43. I have not recommended any service improvements because our records show the Council has already implemented an ongoing action plan to help overcome the impact of EP shortages. The Ombudsman is regularly reviewing the ongoing service improvements to oversee their effectiveness. Those actions include:
• developing ‘virtual assessments’ and increasing the independent EP workforce;
• recruiting 46 full-time equivalent EPs;
• working with all schools to improve inclusion; and
• accept independent EP reports submitted by parents both for requesting an EHCP and as part of the EHCNA process. The Council will allocate this to an Essex EP to review the report. If the report is of acceptable quality, there will be no need for a Council commissioned EP to undertake an assessment. If the report is not of the sufficient quality a Council EP will need to undertake a report.

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Decision

44. There is fault causing injustice which the Council has agreed to remedy with the remedial action listed in the section above.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman