Summary: The Council delayed issuing a final Education, Health and Care Plan and did not consider its duties under Section 19 of the Education Act 1996, which was fault causing avoidable distress, uncertainty and a delay in appeal rights. The Council will apologise and make payments to reflect the injustice.

The complaint

1. Ms X complained the Council did not issue her child Y with an Education, Health and Care (EHC) Plan within legal timescales. She also complained Y only received 15 hours a week of education despite being of compulsory school age.
2. As a result, Y missed out on education and special educational provision.

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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. 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)
6. 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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How I considered this complaint

7. I considered the complaint, the Council’s responses and evidence summarised in this statement.
8. Ms X and the Council had an opportunity to comment on my draft decision. I will considered their comments before making a final decision.

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What I found

Relevant law, policy and guidance

9. 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 SEND 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.
• 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 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);
10. As part of the assessment, councils must gather advice from relevant professionals, including an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice. (SEND Regulations 2014, Regulation 6(1)).
11. 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.
12. Guidance states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. A part-time timetable must not be treated as a long-term solution. (DfE School Attendance: guidance for schools, August 2020)
13. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?” says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
14. In Essex, schools and nurseries can apply for funding, called Individual Pupil Resource Agreement (IPRA) to meet additional needs a pupil may have. The Council’s funding panel meets weekly to decide on applications for IPRA. Funding is awarded for up to a year. Schools are expected to request an EHC needs assessment where the child has SEN and needs funding longer-term to support their SEN.

Public Interest Report on similar issues: 23 003 950 - Local Government and Social Care Ombudsman

15. We issued a report in March 2024 about this Council’s duties under section 19 of the Education Act 1996. We made recommendations to the Council for actions to take to improve its services and minimise the risk of recurrence. The Council accepted our recommendations and took the following action:
• From September 2024, it trained all staff in the education directorate on the education-related statutory duties the Council holds; and
• From June 2024, it established a clear triage process for identifying possible Section 19 cases where further casework and investigation is needed including where a pupil has a reported part-time timetable.

What happened

16. Y has SEN. He started in Reception at School A in September 2023, attending 15 hours a week. Before starting at School A, Y had been receiving IPRA funding at nursery and the Council continued providing this additional funding from September 2023, initially for two terms.
17. School A commissioned an EP to see Y and prepare a report in October 2023. Their report contained some short-term recommendations for Y.
18. School A requested an EHC needs assessment on 22 November 2023. School A included Y’s attendance records for the term so far: fifty per cent. School A also said Y was on a part-time timetable (three hours a day)
19. Y’s fifth birthday was in January 2024.
20. The Council agreed to carry out an EHC needs assessment on 10 January 2024. Its letter to Ms X noted there would be a delay in completing this because of a shortage of EPs.
21. School A wrote to the Council on 16 January requesting extra IPRA funding. The letter said Y was attending school three hours a day. It asked for additional funding for a full-time TA and provided a costed provision map (a table setting out what support Y needed and why). The Council’s internal record of the funding panel indicates it agreed an increase in funding, but not to full-time.
22. Ms X complained to the Council in the last week of April 2024. She said the 20-week timeframe for issuing Y’s EHC Plan was due shortly. She said there was already an EP report available as an EP had seen Y at School in October 2023, as well as advice from other professionals. She said School A was only allowing Y to attend for 15 hours a week and had said this was because he needed full-time one-to-one-support which it did not have the funds to provide.
23. The Council responded in the first week of May, upholding her complaint, apologising for the delay and explaining this was due to a shortage of EPs. It explained:
• The recruitment and retention of EPs was a major challenge recognised in the Council’s SEND improvement plan. The Council was working hard to recruit and retain EPs and there is a rolling advert placed.
• Alongside recruitment and retention it was developing an approach to using ‘virtual assessments’ where appropriate, as well as increasing its associate EP pool, which is its independent EP workforce.
• The number of requests for assessment increased sharply since lockdowns ended; there were over 3,500 a year with the largest number being from schools. This has placed additional significant strain upon SEND teams. In order to ensure that we have sufficient capacity it had recently invested additional funding to expand teams by 46 full time staff. However, there remains a very high risk that there will still be delays
• The SEND inspection of Essex in 2019 highlighted a significant weakness with the quality of Education Health Care Plans. It put into place an extensive improvement plan to improve the quality of assessments and plans which was recognised in May 2022 when Ofsted and CQC revisited Essex and found that this was no longer an area of significant weakness.
• A delayed EHC needs assessment resulting in an EHC Plan would typically lead to the Council making a backdated payment to the school for funds associated with the EHC Plan
• Each school is supported by the Inclusion Team who can provide support and provision as required. Y is entitled to a full time offer in school, if this is appropriate and the Council can contact school if she gave consent.
• The existing EP report for Y and its recommendations would be considered along with the Council’s EP advice.
24. Ms X was unhappy with the Council’s response. The Council acknowledged this, said her complaint had been fully upheld and apologised for the delay. She complained to us at the end of May 2024.

Events since the complaint to the LGSCO

25. Meantime, between May and July Ms X and senior officers from the SEND team exchanged emails about the continuing delay. One officer suggested the private EP advice could be used, but a more senior officer said it could be considered, but a council EP advice was still needed as the private advice did not contain everything required for an EHC Plan.
26. On 2 July, the Council’s funding panel refused School A’s request for additional funding for a full-time one to one TA. The panel refused the request saying “there was no element of Y’s day when he was afforded any independence and he has an adult glued to him at all times. There are no opportunities for social interaction… band three remains appropriate and school need to build up his time in school.” The panel also said “it is an illegal exclusion to reduce the time a child spends in school because of finance”
27. The Council allocated an EP on 31 July and their advice was available on 3 September.
28. The Council issued Y’s final EHC Plan on 1 November, naming School A as Y’s placement. Section F doesn’t say Y requires full-time support from a teaching assistant (TA). It says he needs support regularly throughout the day in small chunks of time. Ms X appealed the contents of Section F to the SEND Tribunal. She told me this was because key provision recommended by professionals was missed out.
29. I asked the Council to provide evidence of action taken to ensure Y receives a full-time education or to explain why it considered full-time education was not in Y’s best interests. The Council said “there have been wider discussions within the LA to agree who is responsible for responding to notifications from schools of reduced timetables…. Notifications from School A were not actioned and no consideration was given to whether the Section 19 [duty] was triggered.”
30. Ms X told me Y continues to be on a part time timetable. Between July and the end of October 2024, he was in school 15 hours a week and from November, this increased to full time Monday and Tuesday and three hours a day Wednesday, Thursday and Friday. Y also has to come home for lunch because School A will not support him without a TA.

Was there fault and if so, did this cause injustice?

The Council did not issue Y with an Education, Health and Care (EHC) Plan within legal timescales.

31. There was delay by the Council, which was not in line with the law or the SEND Code of Practice and was fault (service failure) caused by the shortage of EP’s. The timescales should have been:
• The decision to assess was due within six weeks of the request on 22 November 2023 – so by 3 January. The decision was not issued until 10 January: a delay of one week.
• The final EHC Plan was due by 10 April 2024 to be within 20 weeks of the request. This was a delay of six and a half months.
32. The fault caused a delay in appeal rights, avoidable distress and uncertainty for Ms X about the SEP Y would be entitled to.

Y is only getting 15 hours a week of education despite being of compulsory school age.

33. The Council was at fault because:
• It was aware Y was on a part-time timetable from November 2023 because School A said so in its application for an EHC needs assessment. Y became of compulsory school age when he turned five in January 2024. The Council failed to consider whether the Section 19 duty applied. This was fault.
• As explained in paragraph 12, guidance says part-time timetables are not a long-term solution and recommends the Council keeps all cases of part-time education under review. This applies where a school introduces part-time timetables. The Council’s failure to carry out a review and to decide whether to step in a make additional provision available was not in line with guidance
• The funding panel commented Y was being ‘illegally excluded’ but this was not until July 2024 when the part-time timetable had been in place for a school year. Despite the panel’s comments, there was no action taken to ensure Y could access a full-time timetable.
• The Council said in its complaint response that it could contact School A with Ms X’s consent. This response was ineffective and fell short of the positive action set out in our focus report (see paragraph 13) that we expect a council to take when a school is not providing full-time education on a long-term basis.
34. The fault caused avoidable uncertainty about what additional educational provision the Council would have made available if not for its failings.

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Agreed action

35. The Council will, within one month of my final decision:
• Apologise. 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.
• Make a payment of £650 to Ms X to reflect the avoidable distress, uncertainty and delay in appeal rights caused by the delay in securing EP advice
• Make an additional payment of £500 to reflect the avoidable uncertainty caused by the Council’s failure to consider its duty under section 19 of the Education Act 1996.
36. The Council implemented new procedures at around the same time as the issues in this complaint, as I have summarised in paragraph 15. Those changes will minimise the chance of recurrence and so I have not made any recommendations for further improvements to services. And the Council already has an improvement plan to address the shortage of EPs and so no further recommendations about this are needed.
37. The Council should provide us with evidence it has complied with the actions in paragraph 35.

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Final decision

38. We upheld the complaint finding fault and injustice. The Council has agreed to apologise and make payments which will remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman