Summary: Mrs B complained the Council delayed in completing an education, health and care needs assessment for her child. We upheld the complaint, finding the delay caused injustice through a loss of education provision. The Council accepted these findings. At the end of this statement, we set out the action it has agreed to remedy that injustice.

The complaint

1. Mrs B complained the Council delayed in completing an education, health and care needs assessment for her child, C. She said this resulted in it taking longer to produce an Education, Health and Care Plan for C than the law allows.
2. Mrs B said as a result C was out of school for longer than they should have been and this would make it harder for them to re-integrate into education. Mrs B also said she and C had lost trust in the Council.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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. (see R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. 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. 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)
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. 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.
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. Before issuing this decision statement, I considered:

• Mrs B’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence exchanged between Mrs B and the Council about the matters covered by the complaint, which pre-dated our investigation;
• information provided by the Council in reply to enquiries I made;
• relevant law and Government guidance referred to in the text below;
• relevant guidance published by this office, referred to in the text below.

12. I also gave Mrs B and the Council an opportunity to comment on a draft version of the decision statement. I took account of their replies before finalising the decision statement.

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What I found

Relevant law and guidance around special educational needs

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This will set out the child’s needs and arrangements made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about a child’s needs, education, or the name of the educational placement. Only a SEND Tribunal or the council can do this. 
14. The Government publishes statutory guidance - ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’). This explains how councils should carry out need assessments and produce EHC Plans. The Code takes account of the Children and Families Act 2014 and the SEN Regulations 2014. Of relevance to this complaint, it says:  

• 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 agrees to undertake an EHC needs assessment, it must decide whether to issue an EHC Plan within 16 weeks;
• if the council goes on to issue an EHC Plan, it should take no more than 20 weeks to issue the final EHC Plan from the day it receives an assessment request (unless certain specific circumstances apply).

15. As part of the assessment, councils must gather advice from relevant professionals (see 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. 

16. Those consulted have a maximum of six weeks to provide the advice. 
17. A parent has a right of appeal to the SEND Tribunal if unhappy with some parts of an EHC Plan. This includes how the Plan describes a child or young person’s special educational needs and the provision specified.

Relevant law around Section 19 of the Education Act and alternative provision

18. Councils must arrange suitable education at school or elsewhere for pupils 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.
19. This applies to all children of compulsory school age living in the local council area, whether or not they are enrolled at a school. (Statutory guidance ‘Alternative Provision’ January 2013)
20. The provision generally should be full-time unless it is not in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
21. The courts have considered the circumstances where the section 19 duty applies. 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)

Chronology of key events

22. The events covered by this complaint begin in early 2023. C was in Year 9 of their education and enrolled at a mainstream school.
23. C experienced significant anxiety and selective mutism which impacted their attendance at school. Their attendance began to decline during Year 9 and C’s school sought advice from an Education Psychologist in December 2022 which recommended strategies to try and encourage C’s engagement.
24. The Council became aware of C’s absence after contact from the school. In February 2023 officers from its Learning and Behaviour Advisory Team met with the school to discuss C’s case. Mrs B did not know of the meeting at the time and did not receive an invite to attend.
25. The meeting recorded C’s attendance at school for Year 9 was around 50%. The Council gave the school advice on various specialist services it provided, which might help it to support C. It also suggested the school consider placing C on a reduced timetable.
26. In November 2023 the Council said the school contacted it again, saying C continued to struggle to access education. By now I understand they were not attending school at all. The Council’s Fair Access Team says from this time it accepted C could not attend school and so referred them to its medical provision service. But this had no capacity to provide any service to C before January 2024.
27. Also, in November 2023 the Council received a request to undertake an education, health and care needs assessment of C. It agreed to the request the following month. On the day it agreed to assess the Council wrote to a local child development centre which provides speech and language therapy (SLT) and occupational therapy (OT) services. Neither service provided advice and information, giving reasons they did not consider it appropriate. The Council passed on those reasons to Mrs B.
28. From January 2024, the Council’s medical provision service tried to put alternative education provision in place for C. This comprised online study for five days a week, for up to 15 hours a week. It also made weekly welfare checks to the home. Because of their needs C could not engage with the service. Mrs B said she considered the stress of the weekly visits harmful to C’s wellbeing. She also said that initially the Council had not told her when the service became available.
29. In March 2024 Mrs B complained:

• the Council had not yet completed C’s needs assessment; and
• that it had not obtained specific advice and information from SLT or OT services as part of the needs assessment.

30. Also, in March 2024 the Council received information that C could not engage with the alternative provision on offer. But it received information that discussions continued involving Mrs B, the school and alternative provision provider looking at ways that C could access it.
31. In April 2024 the Council replied to Mrs B’s complaint. It apologised for delay in completing C’s needs assessment. It said this was because of a delay in it receiving advice and information from an Education Psychologist. It said this in turn was because of the impact of a nationwide shortage of such professionals. It explained measures the Council had agreed to try and recruit more education psychologists and use agencies to help. It said that it had decided against getting the specialist advice and information Mrs B asked for having consulted the local child development centre (with SLT and OT services).
32. Later that month, Mrs B escalated her complaint. In May 2024, the Council wrote to say it could not add to the reply it had provided previously. It again apologised for the delay in completing C’s needs assessment.
33. Also, in May 2024 the Council stopped making the alternative provision available to C, with which they could not engage.
34. At the end of May 2024, the Council received Education Psychology advice. It produced a draft EHC Plan and consulted Mrs B on that, after which it amended the Plan and issued a second draft in June. The Council then consulted schools, including a specialist education placement preferred by Mrs B and C. The following month, after receiving consultation responses, it considered C’s case at a panel of senior officers. This agreed to issue a final EHC Plan naming the specialist school, although it did not finally issue this until mid-September 2024. C then began receiving education from the specialist provider a week later, around three weeks into the Autumn term.
35. Over the previous 12 months this office has investigated other complaints made against the Council, because of delay in issuing EHC Plans. As part of those investigations, we asked the Council to share details of action it was taking to address delays in providing education psychology advice and completing needs assessments.

Findings

Considerations on the scope of the investigation

36. I decided to exercise my discretion to look at the Council’s response to C’s education needs from January 2023. Mrs B did not complain to us until June 2024, meaning any complaint about a lack of service from early 2023 was a late complaint. However, I noted the evidence that from early 2023 the Council knew of C’s absences from school. There followed a continuous chain of events where C’s attendance continued to worsen and led the Council to undertake an education, health and care needs assessment.
37. Clearly from early 2024, Mrs B had become dissatisfied with the provision in place for C and so began her complaint. I considered given the circumstances I could not realistically fix a date at which Mrs B should have complained earlier. It was reasonable Mrs B allow the Council time to complete its needs assessment and to see what alternative provision it may offer C before complaining. So, it was not fair to her to decline to investigate the full sequence of events from the time the Council learnt of C’s absences.
38. But I decided not to investigate Mrs B’s dissatisfaction the Council did not obtain specific advice and information from SLT and OT services as part of its education, health and care needs assessment.
39. This was because of Mrs B’s right to appeal C’s final EHC Plan to the SEND Tribunal. The purpose of the Council obtaining any specialist advice and information is to inform the description of the child’s needs and the provision identified in a Plan. So, where a parent considers a Plan inadequate because the Council has not sought specialist advice, they can ask the SEND Tribunal to direct it to do so, as part of an appeal.
40. In this instance, I saw no special reasons that justified us investigating the Council’s approach to Mrs B’s requests for specialist advice and information.

Was the Council at fault?

41. I found no fault in how the Council responded to C’s needs between January and November 2023. I considered the Council’s meeting with the school in February 2023 showed it had looked at what efforts the school was making to meet C’s education needs. It then made a series of suggestions of further efforts the school could make.
42. I considered it implicit therefore that its position was that C had education reasonably available to them. I could not find fault with how the Council reached that judgement, even though I accepted Mrs B may disagree with it. This is because I found the Council only took relevant factors into account in reaching it and nothing irrelevant.
43. But there was fault in how the Council responded to C’s needs after November 2023, when it found they were medically unfit to attend school and needed support to access education.
44. First, the Council delayed in offering any alternative provision to C. It could not do so before January 2024, around two months after identifying C’s need for the same. I also accepted Mrs B’s account that it did not make clear the offer of alternative provision at the outset.
45. But I did not find fault in the Council’s attempts to make alternative provision available to C after January 2024. It knew in March 2024 of C’s struggle to access this provision, but also that efforts remained ongoing to try and engage them with it. It was disappointing there was no fuller record of why those efforts stopped in May 2024. But I considered the weight of evidence supported the view that C could not effectively engage at that time. And without a completed education, health and care needs assessment I also considered the Council would not know how best to support C when other efforts had failed.
46. A second fault lay in the delay in the Council completing that needs assessment and issuing C’s EHC Plan. As it received the request to assess C’s needs in November 2023, it should have issued their final EHC Plan before the end of March 2024. But it did not do so until mid-September 2024, a delay of nearly six months.
47. The biggest cause of the delay was a service failure, because of the Council’s shortage of Education Psychologists. I am satisfied when the Council undertook C’s needs assessment it had recognised this shortage and taken some steps to address it. But this did not remove the duty on it to meet the timescale set by Government to issue an EHC Plan.
48. I also noted a delay that followed the Council’s panel agreeing C needed specialist provision and the final EHC Plan which confirmed this. I recognised the panel met in the school holiday period. It perhaps did not want to issue the final Plan until the school term began. But this contributed to C being unable to resume education at the start of the Autumn 2024 term. Having already had five terms of significant disruption to their education, this was clearly regrettable and added to the delay caused by the shortage of education psychology advice.

Did these faults cause injustice?

49. I considered the injustice arising from the first fault identified in paragraph 44 minimal. Mrs B experienced some distress through frustration and uncertainty waiting for the Council to offer alternative provision for C. But when the Council went on to offer this to C, they could not engage with it. So, I found that even if the Council had offered alternative provision sooner, C could not have benefited from it, because they could not engage with it.
50. I considered the injustice arising from the second fault more significant. Normally I would not speculate on what would have happened where a service failure resulted from a delay in the Council receiving education psychology advice. This is because such advice is a snapshot of the child’s needs at a fixed point in time. The snapshot could look different if taken months previously. This has implications for what we might recommend, as often we cannot say therefore what education provision would have looked like but for the delay.
51. However, in this case I decided we could take a view on this question. Because the evidence showed that if the Council had completed the EHC Plan in March 2024, it would have looked very similar to that produced in September. Because by March 2024, C had already reached a point where they could not engage with mainstream education or alternative provision. So, I considered any EHC Plan issued around March 2024 would have been largely the same in content, including when it came to the education provision. The logical consequence of which, was that but for the fault C may have begun their re-engagement with education, via that specialist provision, at least one term sooner.

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Agreed action

52. The Council has accepted these findings. It has also agreed that to remedy the injustice caused to Mrs B and C that it will, within 20 working days of this decision:

• provide a written apology to Mrs B, following the advice contained in our published guidance on remedies on what a suitable apology should contain; (see Guidance on remedies - Local Government and Social Care Ombudsman)
• make a symbolic payment to Mrs B of £2000.

53. I recommended the symbolic payment after taking account of our published guidance on remedies. This suggests that where fault results in a loss of education provision we will usually recommend a payment of between £900 and £2400 a term. In this case C missed at least one whole term of education provision and I considered a mid-range sum of £1600 appropriate. I rounded this up to take account that C could not resume education provision immediately in September 2024 and also for Mrs B’s distress.
54. I did not consider it necessary in this case to recommend any service improvements. Other investigations by this office have addressed the systematic delays with education psychology advice. Those investigations have recommended actions the Council should take to address this, alongside those efforts begun on its own initiative. I could not add to those investigations.
55. The Council will provide us with evidence it has complied with the actions set out in paragraph 52.

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Final decision

56. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mrs B and C. The Council accepted this finding and agreed action to remedy that injustice. So, I could complete my investigation satisfied with its response.

Investigator’s draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman