Summary: Miss X complained about the Council’s delay completing her child, Y’s Education, Health and Care needs assessment, and failure to provide Y with suitable alternative provision while out of school. We find the Council at fault. This impacted Y’s education and caused avoidable distress and uncertainty to Miss X. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complained the Council failed to complete her child Y’s Education, Health and Care needs assessment within the statutory timescales.
2. Miss X also complained the Council failed to provide her child with suitable alternative provision since May 2024.
3. Miss X says this has affected the family financially and emotionally and Y is unable to attend school as his needs are not being met.
4. Miss X wants an EHC Plan completing as soon as possible, and suitable alternative provision put in place for Y in the meantime.

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The Ombudsman’s role and powers

5. 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)
6. 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.
7. 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)
8. 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.
9. 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)
10. 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

11. I spoke with Miss X and considered the information she provided.
12. Written enquiries of the Council were made. I considered its response along with relevant law and guidance.
13. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
14. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Timescales and process for EHC needs assessment 

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. 
• 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).

Education, Health and Care Plan

16. 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. Only the tribunal or the council can do this. 

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. 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.

What happened

18. In June 2023, Miss X requested a EHC needs assessment for her son, Y.
19. In July, within the statutory timescale, the Council sent a letter to Miss X explaining it had decided not to assess Y due to insufficient information to support the request. The letter told Miss X about her right of appeal to the SEND Tribunal.
20. Later that month, Y’s school sent the Council a provision map, detailing the support Y needed to access learning, to support the EHC needs assessment request. The school sent the provision map again in September.
21. A support worker helping Miss X emailed the Council six times between September 2023 and February 2024, following up on the assessment request.
22. In February 2024, the Council acknowledged the support worker’s email and said it had sent her complaint to Customer Services for a response.
23. Later that month, the Council agreed to assess Y and told both Miss X and the school of its decision.
24. In April, Miss X complained to the Council about the delay completing Y’s EHC needs assessment.
25. In May, the Council provided its final response, acknowledging the current timescales for completing assessments exceeded statutory timescales. The Council explained that the number of requests for assessments had risen sharply and detailed the steps it was taking to improve the situation. The Council said once it received the extra information from the school in February 2024, it considered this and agreed to carry out an EHC needs assessment. As the information was received in February, that was the start date for the request.
26. Later that month, the Council became aware that Y was not attending school.
27. In June, the school requested the Council’s support for alternative provision, sharing that a range of reduced timetables and onsite provisions had been attempted without success. A recent agreement for Y to attend school for two hours in the afternoon had also failed.
28. The Council reported difficulties in arranging a meeting to discuss alternative provision for Y, initially scheduling a meeting in July, which was later postponed to September. Alternative provision started later that month.
29. In September, during my investigation, the Council offered Miss X a £500 symbolic payment for the delay in issuing Y’s EHC Plan.

My findings

30. In July, the Council decided not to assess Y because there was insufficient information to support the request. There is no fault in this decision. The Council informed Miss X of her right of appeal, but she chose not to pursue this. Had Miss X appealed, it is likely the school’s provision map would have been reviewed, and the decision not to assess reversed.
31. Initially, the Council said it received the school’s provision map in February 2024, which triggered the new start date. However, in response to my enquiries, the Council discovered that the provision map had actually been sent in July 2023. The Council has acknowledged that it significantly delayed reviewing the provision map, only considering it in February 2024. The Council treated the provision map as a new request for an EHC needs assessment and based on the information, agreed to assess Y. On balance, had the Council reviewed the provision map in July, it likely would have reversed its decision not to assess Y or made a new decision to assess. Regardless, the Council’s delay contributed to the delay in issuing Y’s EHC Plan and in providing necessary support. However, this delay could have been avoided if Miss X had exercised her right of appeal, which would have been a reasonable course of action.
32. The Council has accepted it has not completed the EHC needs assessment within the statutory timescales.
33. Y’s EHC Plan should have been issued within 20 weeks of considering the provision map in February 2024, so in July 2024. However, the Council anticipates the EHC Plan will be issued in December 2024, a delay of five months. This delay is fault and has caused avoidable distress, uncertainty, and impacted Y’s education.
34. In May 2024, the Council became aware that Y was no longer attending school. At that point, it had a section 19 duty to investigate the reasons for Y’s absence and consider arranging suitable alternative provision. However, a meeting to discuss Y’s education did not take place until September, with alternative provision arranged later that month. On balance, had the Council acted in May 2024, it is likely that the section 19 duty would have been accepted then. This resulted in a four-month delay. This delay is fault and left Y without alternative provision during that period.
35. There is clear evidence of poor communication from the Council. Of the six emails sent by Miss X’s support worker, the Council responded to only one, in February, advising the complaint was forwarded to customer services. However, this complaint was never dealt with. In response to my enquiries, the Council has advised the complaint was in fact never forwarded because it was sent without Miss X’s consent. The Council’s poor communication and misleading information is fault and caused further delay, distress, and uncertainty. The Council missed several opportunities to resolve the issue and prevent further delays in Y’s EHC needs assessment.
36. In recognition of the injustice caused by the delay’s experienced in issuing an EHC Plan, the Council offered Miss X £500. I have considered whether the Council’s remedy is in line with the expectations in our Guidance on Remedies. In my view, while the Council has considered the delay issuing the EHC Plan, it has not considered the impact of the delay in providing the additional special educational needs provision. In line with our guidance and taking into consideration Y has been out of education and not provided with alternative provision for four months, I consider an increased remedy is appropriate.
37. Where fault results in a loss of educational provision, we will usually recommend a remedy payment between £900 and £2400 per term to acknowledge the impact of that loss. In Y’s case, we have calculated the remedy at £2000 per term.

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Agreed action

38. To remedy the injustice caused by the above faults, and within four weeks from the date of our final decision, the Council has agreed to: 
• apologise to Miss X in line with our Guidance on Making an effective apology; and 
• pay Miss X £500 in recognition of the uncertainty and distress caused by its poor communication and the time and trouble bringing the complaint to the Council and then the Ombudsman; and
• pay Miss X £2000, as a remedy for Y’s benefit, in recognition of the loss of educational support for approximately one term.
• Once the final Plan is issued, the Council should remedy, in line with our Guidance on Remedies, any special educational provision Y would have had sooner but for the delay (in this case since July 2024).
39. I have not recommended any action for the Council to take to improve its services. During our investigation, the Council assured the Ombudsman of the actions it is taking to address delays within its SEND team.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation. There was fault by the Council. The Council has agreed to the above action as a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman