Summary: Mrs X complained the Council delayed issuing her son, Y’s, Education, Health and Care (EHC) Plan and failed to provide alternative provision when he was unable to attend school between June 2023 and June 2024. The Council was at fault in delaying issuing Y’s EHC Plan and failing to consider if it should provide him alternative provision. The Council will apologise to Mrs X, pay her £3,150 to recognise the frustration and uncertainty caused to her and for the term of education and specialist provision Y did not receive. The Council will also remind staff of its duties to consider alternative provision and respond to complaints fully.

The complaint

1. Mrs X complained the Council delayed issuing her son, Y’s, Education, Health and Care (EHC) Plan and failed to provide alternative provision when he was unable to attend school between June 2023 and June 2024. As a result, Mrs X stated Y’s education and welfare suffered and she was caused distress and financial loss as she funded provision for Y and reduced her working hours. Mrs X wanted the Council to reimburse the financial loss she suffered and provide compensation for the distress they both experienced.

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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. 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.
4. 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)
5. 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

6. I read the documents Mrs X provided and discussed the complaint with her on the phone.
7. I considered the documents the Council provided in response to my enquiries.
8. Mrs 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

Relevant legislation and guidance

Education, Health and Care Plans

9. 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. 
10. The EHC Plan is set out in sections which include Section F. Section F sets out the special educational provision needed by the child or the young person. 
11. 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

Provision

12. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).
13. If a council is satisfied that it would be inappropriate for the provision in a child’s EHC Plan to be made in a school, it may arrange for it to be made otherwise than in a school (Section 61 Children and Families Act). This is often referred to as Education Other Than At School (EOTAS). The arrangements should be set out in section F of the child’s EHC Plan.
14. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
15. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.

Alternative provision

16. 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.
17. 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)
18. 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
19. 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.

20. 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.

What happened

21. Y is a child who lives at home with his parents and sibling. At the time of these events he was of primary school age. In March 2023 Mrs X told the Council that Y was struggling to attend school. Mrs X provided a GP’s letter explaining Y was suffering anxiety and requesting the Council support him while he awaited assessment for neuro-differences.
22. Y had a period out of school and Mrs X asked the Council to attend a meeting to support Y in reintegrating to school in May 2023. By this time Y had completed assessments which showed he had neuro-differences that meant he had special educational needs. The Council declined to attend.
23. The school Y attended contacted the Council in June and said Y was on a phased return that was not going well and sought advice on how to support Y in returning to school. The Council suggested the school complete referrals to its complex behaviour team and psychology services.
24. Mrs X contacted the Council again in June and told it that Y was still not able to attend school due to anxiety related to his neuro-differences. Mrs X asked the Council to provide alternative provision in the form of home tuition for Y to meet his needs. The Council did not respond.
25. On the 6 July 2023 Mrs X asked the Council to carry out an EHC needs assessment for Y. She said Y had diagnosed neuro-differences that impacted his ability to learn and provided appropriate reports. Mrs X reiterated Y had not been able to attend school since March 2023 and the school was sending worksheets home but Y was not able to engage with them.
26. The Council’s complex behaviour team met with Y and Mrs X and provided Mrs X with strategies to support Y at home. At the end of July the Council, the school and Mrs X met to discuss Y’s transition to the next year in September. The record of the meeting does not record any information on how the school or the Council would support Y to reintegrate at school or access education.
27. The Council agreed to carry out an EHC needs assessment for Y on 25 August 2023 and began gathering advice from relevant professionals.
28. Mrs X said she asked the Council again about alternative provision for Y in October 2023, but did not receive a response.
29. The Council received reports from children and adolescent mental health services and its own social care department at the end of October and the Educational Psychologists (EP) report at the end of December.
30. At the beginning of January the Council told Mrs X it would issue an EHC Plan for Y. The Council said it issued a draft Plan for Mrs X’s comments in mid-January after which Mrs X requested EOTAS and provided evidence to support this request. The Council said it agreed to an EOTAS package in principle at the beginning of February 2024.
31. Mrs X contacted the Council in March 2024. She complained it had not responded to her requests for alternative provision between June and October 2023 and a further request she had made in February 2024. She said the Council was failing to meet its section 19 duty and Y had been out of education for a year. Mrs X also complained the Council had not finalised the EHC Plan for Y in line with the timescales. Mrs X said that as a result she was having to fund provision for Y herself and reduce her working hours as Y was not at school.
32. The Council responded to Mrs X’s complaint. It apologised for its poor communication and said its tuition and medical needs team would contact Mrs X to arrange education support for Y. It said it was developing an EOTAS package for Y.
33. Mrs X told the Council that it had not considered the impact of its faults on her or her family and had not provided any timescales for the provision to be put in place.
34. The Council issued a second and third draft plan for Mrs X’s comments in April 2024.
35. The Council issued an EHC Plan for Y on 26 April 2024. It said Y had neuro-differences that impacted his communication and interaction skills. It said Y should receive EOTAS in the form of outdoor education sessions, educational visits, tuition, mentoring, educational subscriptions and 11 hours of support a week from a support assistant. The Plan recorded that Y’s personal budget for the provision set out in his Plan was £12,000 per academic year.
36. In mid-May Y began to receive one hour of tuition per week from the Council’s tuition team. Mrs X received the first personal budget payment at the end of May 2024.
37. The Council responded to Mrs X’s complaint. It said it had significantly delayed in issuing the EHC Plan and accepted Mrs X had funded provision in the interim, and apologised.
38. Mrs X was dissatisfied with the Council’s response and complained to us.
39. In response to my enquiries the Council stated the delay in issuing Y’s EHC Plan was caused by a delay in receiving professional reports and in issuing three drafts to resolve any areas of difference prior to issuing the final Plan.

My findings

Alternative provision

40. The Council was aware from March 2023 onwards that Y was struggling to attend school, and from June 2023 that Y was not attending school at all. The Council should have considered at that time whether it owed Y a section 19 duty. It missed many opportunities to do so between March 2023 and May 2024 and subsequently did not take any of the six actions we recommend in our guidance set out in paragraph 19. That was fault and caused uncertainty to Mrs X about what the Council would have done had it considered its duty. I cannot say what action the Council would have taken had it acted without fault prior to February 2024.
41. In February 2024 the Council decided that Y should receive an education other than at school. It could only make that decision if it was satisfied that it was not appropriate for Y to receive education in a school. Therefore, having decided Y could not access education in a school it should have put in section 19 alternative provision until it issued Y’s EHC Plan. It did not, and so Y missed out on a term of alternative education between February 2024 until May 2024.

Education, Health and Care Plan

42. Mrs X requested an Education, Health and Care needs assessment for Y at the beginning of July 2023. In line with the timescales set out in the guidance the Council should have issued its decision to issue an EHC Plan for Y by the beginning of October 2023. The Council did not do so until January 2024 which was a delay of ten weeks and fault. The Council said the delay was caused by it waiting for professional reports, including the EP, to inform the Plan. The Council has not provided any evidence of the action it took to reduce any delay or chase the relevant professionals.
43. Having issued its decision to provide an EHC Plan for Y, the Council should have issued a final EHC Plan by 23 November 2024. The Council did not issue a final EHC Plan until 26 April 2024 which was a delay of 22 weeks and was fault. The Council said the delay was caused by it discussing and agreeing the content with Mrs X. However the timescales in the guidance take in to account parental comments and requests for EOTAS.
44. In total Y’s EHC Plan was delayed 32 weeks. I cannot say that Y missed out on specialist provision prior to the Council receiving the professional reports, as I do not know what Y’s needs were before then. However, once the Council had received the reports, had it acted without fault it could have issued Y’s final EHC Plan by the beginning of February 2024. Therefore, Y missed out on the special educational provision set out in his EHC Plan for one term between February and May 2024 when the Council began providing a tutor and paying the personal budget for his specialist provision.
45. Mrs X was also caused injustice but the faults set out above. Mrs X had to reduce her working hours while Y remained at home and funded provision and activities for Y herself. Whilst we cannot make findings or recommendations about loss of earnings, I have made a recommendation to recognise the distress this caused Mrs X. I have not recommended the Council reimburse Mrs X for the provision she put in place for Y, as I cannot say whether the provision was appropriate.
46. Following a different Ombudsman investigation, we recommended the Council reminded relevant staff of its duty to complete the EHC Plan process within the statutory timescales regardless of whether a parent disagrees with the content. As the events in this investigation pre-date that recommendation, I have not made the same recommendation in this case. We will continue to monitor the Council’s timeliness in the EHC process through our case work.

Communication and complaint handling

47. The Council’s communication with Mrs X was poor. Mrs X asked for support and alternative provision on several occasions. The Council did not respond to any of Mrs X’s requests for alternative provision. That was fault.
48. Its complaint handling was also insufficient. Mrs X raised complaints about the delay in issuing the EHC Plan and the lack of alternative provision. The Council did not respond in any meaningful way to Mrs X’s complaint about alternative provision. It accepted it delayed in issuing the EHC Plan but did not consider the impact this had on Y or Mrs X, even after Mrs X had asked it to do so. It accepted Mrs X had funded provision for Y but did not consider how it could remedy the injustice this had caused either of them. The Council’s poor communication and complaint handling was fault and caused Mrs X frustration.

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Agreed action

49. Within one month of the final decision the Council will:
1. Write to Mrs X and apologise for the frustration and distress she was caused as a result of its faults, and the uncertainty caused by the Council’s failure to consider its section 19 duty between June 2023 and February 2024. The Council should pay Mrs X a symbolic amount of £750 to recognise the same.
2. Pay Mrs X £2,400 for the term between February and May 2024 when Y missed out on education and the specialist provision in his EHC Plan. This considers Y’s particular circumstances and is in line with our guidance on remedies.
3. Issue guidance or training to relevant officers responding to complaints to ensure it responds to each point of complaint, considers if any identified fault caused an injustice, and how it can remedy any injustice.
4. Remind relevant officers of the Council’s duties to consider its section 19 duty as soon as it is aware that a child is not attending school. The Council should provide relevant officers with a copy of our guidance Out of school, out of sight? published July 2022.
50. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended above.
51. The Council will provide us with evidence it has complied with the above actions.

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Final decision

52. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and avoid the same faults occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman