Summary: Miss X complains the Council failed to complete her son Y’s Education, Health and Care Needs Assessment in line with statutory timescales. We find fault with the Council for delay in completing the Education, Health and Care Plan and for delay in providing suitable alternative education for Y. We have agreed payments for the distress and frustration caused to Mrs X.

The complaint

1. Miss X complains the Council failed to:
• complete the Education, Health, and Care Needs Assessment process in line with statutory timescales after it conceded before Tribunal; and
• provide suitable alternative provision for her son when he could not attend school.
2. As a result her son Y has missed most of Year 7 and all of Year 8, and started Year 9 with no Education, Health and Care Plan (EHC Plan) in place.
3. Miss X would like an apology from the Council and for the Council to address the delays and assign Educational Psychologists so other families do not have to experience this delay.

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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. 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)
6. 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)
7. 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.
8. 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.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
10. 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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How I considered this complaint

11. I spoke with Miss X and considered the information she provided.
12. I made enquiries with the Council and considered the information it provided.
13. I considered relevant law and guidance, as set out below and our guidance on remedies, published 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

Legal and administrative background

Education, Health and Care 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 needs 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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. 
16. 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).  
17. As part of the assessment councils must gather advice from relevant professionals.

Education, Health and Care Plan

18. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.
19. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.

Appeal right

20. 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.

Alternative provision

21. Councils have a duty to arrange the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. (Section 19 of the Education Act 1996)
22. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
23. There is no legal deadline to start provision; it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. Some forms of provision (such as one-to-one), which is intensive, need not be full-time. Provision must be similar to what is offered in school. (Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013)

Service failure

24. 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 and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

What happened

25. Miss X has a son Y who is at secondary school. Y has a diagnosis of Attention Deficit Disorder and is awaiting an Autism assessment.
26. In April 2023 Miss X contacted the Council to request an Education, Health and Care Needs Assessment (EHCNA). The Council declined this in May and wrote to Miss X with its reasons.
27. The Council say it was at the Panel on 23 May 2023 that it was made aware Y was out of education and not attending school. However the Record of Involvement says the Attendance Officer at the school contacted the Council on 21 April saying Miss X would like the Council’s involvement as Y has been out of school for four months with anxiety.
28. On 25 May the school made a Section 19 Medical Referral to the Council. The Council requested further information on 1 June and the school sent this to the Council on 19 June, telling the Council Y had not attended for four months due to school-based avoidance and anxiety.
29. The Council considered the information provided and on 20 June asked to provide the school with a robot so Y could access his lessons at the school remotely. The school refused this on 23 June.
30. As the school did not agree to the Council’s suggestions, it held a meeting with the Council on 11 July. All parties agreed Y would have dual registration with the school and an alternative provider which gave Y a tailored and condensed intensive education.
31. Mediation was held in August for the EHCNA request and the Panel rejected it. In October a Way Forward Meeting was offered to Miss X by the Council to discuss the decision and identify a positive outcome. Miss X appealed to the SEND Tribunal on 19 October.
32. On 24 October the Panel agreed to review the appeal and on 23 November the Council agreed to carry out the EHCNA before the appeal hearing.
33. In late November Miss X requested funding from the Council for a private EP report to stop any further delay in getting Y’s EHC Plan.
34. In February 2024 reintegration at the school was discussed again and all parties agreed Y would go back to school from September.
35. In response to my enquiries the Council said extra provision was provided from April – June 2024 for two hours a week. It was not full-time education as the Council and school agreed this was not in Y’s best interests.
36. The Council agreed there was a slight delay in providing this provison between April / May and June 2023.
37. Miss X made a complaint to the Council in May 2024 as she was still waiting for Y’s EHC Plan. She said she had first sought this in April 2023 then the Council conceded before the appeal without giving a response. The statutory time limits had all passed (see paragraphs 15 and 16).
38. The Council response at the end of May upheld Miss X’s complaint and gave reasons it is not meeting the 20-week time limit (saying these were not excuses). The main reasons were the recruitment and retention of Educational Psychologists (EP’s), and the vast number of requests for assessments since Covid.
39. On 28 June 2024 the Council sought a report from an EP. The proposed EHC Plan was issued to Miss X on 22 August. Meetings were arranged to discuss Y’s reintegration at school in September and the final EHC Plan was issued on 27 September.
40. Miss X was unhappy with the Council’s response so she brought her complaint to the Ombudsman. In response to our enquiries the Council accepts it did not meet the timescales for completing the EHCNA once it made the decision to assess in November 2023, due to the lack of EP’s.
41. The Council has offered a remedy of £100 for every four weeks of delay, giving a total of £1000, plus a further £400 symbolic payment for missed provision.

Analysis

42. Miss X requested an EHCNA for Y in April 2023. The Council declined twice and then accepted just before it went to Tribunal in November. I can understand Miss X’s frustration at this delay but this is not within our jurisdiction to investigate as Miss X had the right to appeal which she used (see paragraphs six and seven).
43. The complaint response did not apologise to Miss X or say what the Council would do to try and rectify the problem. The Council failed to follow the rules of good administrative practice and it read like a standard complaint response with no personalisation.
44. Under the regulations in paragraphs 15 and 16 above the EHC Plan was delayed by 26 weeks. The delays have had an impact on both Miss X and Y. It caused Miss X frustration and uncertainty about whether Y would have received support sooner. It also meant Miss X’s appeal rights were delayed.
45. In response to Miss X and to our enquiries the Council say the delay was due to the shortage of EP’s. The Ombudsman is aware there is a national shortage of public and private EP’s. While I accept there are justifiable reasons the EHC needs assessment has taken longer than it should, the Ombudsman can make findings of fault where there is a failure to provide a service within statutory timescales regardless of the reasons for that service failure.
46. Miss X complains Y was out of education for seven months from January 2023. The Council was aware of this in April or May 2023, at which point it explored what provision to provide Y under Section 19 (see paragraph 21).
47. Even though the education should be full time (see paragraph 22), in this case it was not in Y’s best interests to provide full time education. The school had told the Council in May 2023 Y had been offered a reduced timetable but he was unable to access this. I do not find fault with the Council for providing a part time timetable for Y while he was out of school.

Remedies and Service improvements

48. The amounts put forward by the Council to remedy the injustice caused are in line with the Ombudsman’s Guidance on Remedies (see paragraph eight).
49. I am aware we have made service improvements to this Council on similar cases recently (23011983, 23015907, 23018404, and 23020908). It is clear the Council is experiencing issues which the Ombudsman has addressed. I am satisfied the service improvements agreed on the other complaints also address the issues from this complaint, and the Ombudsman will continue to follow up with the Council on any previously agreed service improvements.

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Agreed action

50. Within one month of the final decision the Council should:
• Apologise to Miss X and for the injustice caused to her by the faults identified. We have published guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• I agree with the Council’s remedy of £1000 for the delay in completing the EHC Plan. This should be paid to Miss X.
• I agree with the Council’s remedy of £400 for the missed provision from April to June 2023. This should be paid to Miss X.
• Pay Miss X £200 for the distress and frustration caused because of the faults above. This is a symbolic amount based on our Guidance on Remedies.
• The total payment to Miss X is £1600.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I find fault with the Council for delay in finalising Y’s EHC Plan, and a delay in providing Y with alternative provison when it he was not attending school. We have agreed a symbolic payment for the injustice caused to Miss X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman