Summary: Mrs X complained about delays and other failures in how the Council assessed her child, Y’s, special educational needs. There was fault in how the Council took too long to assess Y’s needs, issue the first EHC Plan and failed to consider whether it needed to arrange alternative education for Y. This caused Mrs X avoidable frustration and uncertainty. The Council agreed to apologise to Mrs X and pay her a financial remedy.

The complaint

1. Mrs X complains about the Council’s assessment of her son, Y’s, special educational needs. She says the Council:
• took too long to complete the assessment;
• did not carry out the assessment properly;
• issued an unsuitable EHC plan which named an unsuitable school; and
• failed to provide Y with suitable alternative education during the delays.
2. As a result, Mrs X says Y has fallen behind academically and socially, and has not had the same opportunities to make friends and develop as his peers. She also says she has lost earnings and the stress has affected both her and Y’s mental and physical health.
3. Mrs X wants the Council to name her preferred school in Y’s EHC plan and for the Council to improve how it supports other families and young people with special educational needs.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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)
9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
10. 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.
11. 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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What I have and have not investigated

12. I have not investigated how the Council carried out its assessment of Y’s needs, how it decided on the content of Y’s EHC Plan, or how it decided what school Y should attend.
13. Mrs X had the right to appeal these decisions to the SEND Tribunal. We can only investigate something someone can appeal about, if we decide it would not have been reasonable for them to appeal. I am satisfied Mrs X knew about her appeal rights at the time and there are no other good reasons why it would not have been reasonable to use those rights. Therefore, I cannot investigate how the Council made those decisions, or any education Mrs X says Y missed as a result.
14. I have investigated the delays in the assessment process and how the Council decided whether it needed to arrange alternative education for Y.

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How I considered this complaint

15. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
16. Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments before making a final decision.
17. 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

Education Health and Care Plans

18. 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. 
19. 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.

20. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue an EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

21. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.
22. If, following mediation, a council agrees to do something, it must do this either within the time limits set out for similar SEND Tribunal decisions or, for other issues, within two weeks of agreeing.

Alternative provision

23. 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.
24. 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)
25. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
26. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

27. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

Background

28. Mrs X’s child, Y, has special educational needs. Mrs X asked the Council to assess Y’s needs in June 2022, and the Council agreed to do this.
29. Y struggled to attend their former school. The school tried to reintegrate Y and also tried to support them with some learning at home. However, by early 2023 Y was no longer able to take part in any of the education the school had tried to arranged.
30. The Council completed its assessment and decided, in March 2023, that it did not need to issue an EHC Plan for Y. Mrs X disagreed with the Council’s decision.
31. Following mediation in September 2023, the Council agreed to seek more information from Y’s school. Based on that information, the Council changed its decision and agreed to issue an EHC Plan for Y. It sent Mrs X a draft EHC Plan in October 2023, and issued a final EHC Plan in March 2024.
32. That final EHC Plan named Y’s former school as his education placement. However, Mrs X says Y cannot attend that school as it is not suitable for them.

My findings

33. Although Mrs X’s complaint about events before May 2023 is late, I am satisfied there are good reasons to consider the whole period of the assessment process. There were delays in the process after May 2023 which are linked to the earlier delays and I consider it is necessary to consider the whole period to properly investigate rest of Mrs X’s complaint.

Delays with the needs assessment for Y

34. The Council should have decided whether to issue an EHC Plan for Y within 16 weeks of Mrs X’s June 2022 request; by mid-October 2022. However, it did not make that decision, or tell Mrs X about its decision, until mid-March 2023; around 5 months late.
35. The Council said this delay was due to a shortage of educational psychologists (EP) and delays in receiving the necessary advice to complete its assessment. I am satisfied, based on the dates of the EP advice, that a shortage of EPs was the main cause of the delay with the Council’s assessment of Y’s needs.
36. We recognise that there is a national shortage of qualified educational psychologists, and this was the case in late 2022 and early 2023. Therefore, I consider the Council’s failure to obtain the necessary EP advice was service failure. This is, however, still fault.
37. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
38. I consider the delay in completing the assessment caused Mrs X avoidable frustration and uncertainty over a period of five months.
39. As explained above, Mrs X had the right to appeal the Council’s decision not to issue an EHC Plan for Y. Therefore, I cannot investigate how the Council made that decision or any education Mrs X claims Y missed as a result.

Alternative provision

40. The Council knew in early 2023 that Y was not receiving or accessing any education. It then decided in March 2023 that it did not need to make an EHC Plan for Y.
41. Since it knew Y was not receiving any education, the Council should have considered whether it needed to make other arrangements to provide alternative education for them under section 19 of the Education Act 1996. Even though Y’s school was still trying to support them, the Council had clear evidence that Y was not engaging with that support, so it had a duty to consider whether it needed to act.
42. There is no evidence the Council considered its section 19 duties. That failure to do so was fault.
43. However, the evidence about whether Y would have been able to take part in education during much of 2023 is not clear. There is evidence to show that Y struggled to engage with anyone other than his own family, struggled to leave home, or cope with visitors. This was mainly due to his mental health. However, there is also evidence that Y was able to take part in a few hours a week later in 2023.
44. Even on the balance of probabilities, I cannot say whether Y would likely have taken part in alternative education if the Council had arranged it. Therefore, I am satisfied there is a remaining uncertainty about whether the Council’s failures meant Y missed out on education for much of 2023.

Delays with Y’s final EHC Plan

45. After the Council changed its decision to issue an EHC Plan for Y in September 2023, I consider it should have issued a final EHC Plan by early November 2023.
46. Although the Council did not agree to issue a plan as part of the mediation agreement, it changed its decision based on further evidence it agreed to obtain following the mediation. If the Council had agreed to issue the Plan as part of the mediation, the regulations say it should have done so within five weeks. I consider the same timescale should apply in Y’s case.
47. However, the Council did not issue a final EHC Plan for Y until March 2024, just under 5 months late. That delay was fault which I consider caused Mrs X further avoidable frustration and uncertainty. It also delayed her right to appeal the content of Y’s EHC Plan.
48. Mrs X disagreed with the content of the final EHC Plan the Council issued, including that Y should attend his former mainstream school. Mrs X had the right to appeal these decisions to the SEND Tribunal. As explained above, this means I cannot investigate how the Council made those decisions or any education Mrs X claims Y missed as a result.

Amendments to Y’s EHC Plan

49. After it issued the March 2024 final EHC Plan for Y, it agreed to make some amendments to the Plan following further mediation. It issued two amended Plans in May 2024.
50. However, the Council did not amend the dates on those EHC Plans or make it clear the plans were amended final plans. That was fault.
51. Although there was fault in how the Council named and dated those plans, I do not consider this caused Mrs X or Y an injustice. Mrs X had the right to appeal the content of those plans and the failures to include the correct dates on the plans did not affect this.

Communication with Mrs X

52. In its response to Mrs X’s complaint, the Council accepted that its communications with Mrs X had been, at times, poor.
53. The evidence shows that, earlier on in the process, the Council’s communications with Mrs X were generally good. However, later in the process Council officers did not reply to Mrs X promptly and gave her sometimes confusing information.
54. The poor communication with Mrs X was fault which I consider caused Mrs X further avoidable frustration and worry.

Remedies

55. The Council offered Mrs X £1,000 to recognise the impact of the delays in the EHC Plan process for Y. It also apologised for the delays and its poor communication.
56. I consider that remedy would be suitable to recognise frustration and uncertainty the total 10 months of delays. However, I do not consider the Council has offered a suitable remedy to recognise the uncertainty about whether Y could have received some alternative provision between March 2023 (when the Council decided Y did not need an EHC Plan) and March 2024 (when the Council issued the final EHC Plan for Y).
57. I consider a further payment of £600 is a suitable remedy to recognise that uncertainty, and the frustration caused by its poor communication with Mrs X.

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Action

58. Within one month of my final decision the Council will:
• further apologise to Mrs X for the uncertainty caused by its failure to consider whether to arrange alternative education for Y in early 2023; and
• pay Mrs X £1,600 (including the £1,000 it has already offered) to recognise the frustration and uncertainty caused by the fault I found above.
59. The Council should provide us with evidence it has complied with the above actions.
60. I would normally have made service improvement recommendations to address the Council’s delays with EHC Plans and its failure to consider alternative education. However, we made similar recommendations in 2024, which post-dated the events I have investigated. Therefore, I do not consider I need to repeat those recommendations.

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Decision

61. There was fault in how the Council took too long to assess Y’s special educational needs, issue their EHC Plan and failed to consider whether it needed to arrange alternative education for Y. This caused Mrs X avoidable frustration and uncertainty. The Council agreed to apologise to Mrs X and pay her a financial remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman