Summary: We have found fault with the Council for the delays Mr X experienced during his daughter’s (Y’s) Education, Health and Care Plan process and for failing to meet its Section 19 duties. This fault caused Y to miss out on education, SEN provision and the social benefits of a school environment. The Council has agreed to remedy Mr X and Y’s injustice.

The complaint

1. Mr X complained about the delay in his daughter’s (Y’s) Education Health Care (EHC) Plan process. He said the delay means that Y has not been receiving the education or Special Education Need (SEN) provision she needs.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
5. 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)
7. 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 have and have not investigated

8. Mr X brought his complaint to us in March 2024 about events dating back to September 2022 when Mr X and his family moved to the area. Therefore, Section 26B applies.
9. I have exercised discretion and have decided to investigate the full period from September 2022 when Mr X moved to the area. Mr X had no reason to believe there was a problem to complain about until he experienced the delay after the Council issued the draft EHC Plan in March 2023.
10. I have investigated the delays during the EHC Plan process, and the period of missed education.
11. I have not investigated the content of the Plan or the naming of a school. Mr X could use his right of appeal to challenge these issues.

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How I considered this complaint

12. I considered Mr X’s complaint and spoke to him about it.
13. I also considered the Council’s response to Mr X and to my enquiries.
14. Mr 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

Legislation and guidance

EHC Plan timescales

15. 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. 
16. The whole EHC assessment and plan 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).

Section 19 and missed education

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.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013).

What happened

Background

19. Mr X and his family moved into the area in September 2022. Mr X’s daughter, Y, has SEN and was going through the EHC needs assessment at the time. Y did not have a school placement. Mr X notified the Council of their move and the status of Y’s needs assessment in October 2022. The Council completed the needs assessment in November and made the decision in February 2023 to issue an EHC Plan.

EHC Plan delays and poor communication

20. In March 2023, the Council issued Y’s draft EHC Plan. On the same day, the Council sent consultations to potential schools. Over the next 9 months, the Council had limited contact with the family. It only contacted the family to notify them of the change in allocated officer in May and November.

Mr X complained

21. Mr X complained in December 2023 about the delays in the EHC Plan process and lack of contact. He told the Council that Y had not attended a school since moving to the area in September 2022.
22. The Council said that due to the multiple officer changes, it had not identified that Y was not attending school. The Council apologised to Mr X and agreed to put in place 8 hours a week of SEND tutoring for Y. It also apologised for the poor communication regarding the EHC Plan progress.
23. The Council held a meeting with the family in January 2024 to discuss next steps.

Actions following complaint

24. Over the next two months, the Council:
• carried out further consultations with potential placements,
• made amendments to Y’s draft EHC Plan and
• contacted the family about potential alternative provision (AP) for Y while she was out of school.
• agreed a tutoring service for Y
• informed Mr X that a school would be named in Y’s final EHC Plan.
25. Mr X told the Council that the named school was not suitable for Y.
26. In March 2024, the Council issued Y’s final EHC Plan. Mr X appealed to the SEND Tribunal. A month later, the Council contacted the family to confirm that it had agreed a placement at Mr X’s preferred school. Y started here in September 2024.

My findings

EHC Plan delays

27. The statutory timescale for the EHC assessment and plan development is 20 weeks. Mr X notified the Council that they had moved to the area midway through the EHC needs assessment process in October 2022. So, the final Plan should have followed less than 20 weeks later (mid-February 2023).
28. The Council issued the final Plan in March 2024, 57 weeks late. This was fault.
29. This fault led to Y missing out on SEN provision. Y’s final EHC Plan does not include significant SEN support although the delay contributed to Y missing out on education and the social benefits of a school environment.
30. The Council acknowledged the delay and explained the multiple changes in case officers had caused the poor communication.

Missed education

31. The Council failed to identify that Y was out of education when she moved to the area in September 2022. Mr X was partly responsible for not bringing this to the attention of the Council until December 2023 when he raised a formal complaint. However, if the officer communication had been better and the EHC Plan had not been so delayed, the Council would have recognised Y’s missed education sooner.
32. Y received no education between September 2022 and December 2023 (four school terms). The Council delivered 8 hours per week of alternative provision from December 2023 until September 2024 (two school terms).
33. The Council acknowledged it delayed identifying its Section 19 duties. It apologised to Y and her family for the missed education. Following Mr X’s complaint, the Council sent a reminder of the Section 19 legislation around the relevant officers.
34. In response to my enquiries, the Council recognised that a financial remedy was appropriate for the missed provision.
35. Our Guidance on Remedies suggests a financial remedy of £900-£2400 per term of missed provision. In total, Y was out of school for five terms although for two of these, the Council was delivering 8 hours per week of AP. Given the AP received, and the fact that Mr X did not notify the Council that Y was out of school until December 2023, the Council a remedy of £1000 per term, £5000 in total.

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Agreed action

36. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mr X for the delays during the EHC Plan process and the failure to deliver education provision to Y.
2. Pay Mr X £200 for the distress caused by the delays.
3. Pay Mr X £5000 in recognition of Y’s missed education and SEN provision.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation. I have found fault with the Council for the delayed EHC Plan process and failing to meet its Section 19 duties.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman