Summary: the Council delayed completing an education, health and care plan needs assessment, delayed telling Miss B the outcome of that assessment, delayed issuing a final education, health and care plan and failed to provide education to Miss B’s son between June and November 2022. An apology, payment to Miss B and training for officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council:
• delayed completing an education, health and care plan needs assessment (EHC needs assessment);
• delayed telling her about the outcome of that assessment;
• delayed issuing a final education, health and care plan (EHCP) following the Council conceding the appeal; and
• failed to provide her son with education following his permanent exclusion in June 2022.
2. Miss B says failures by the Council caused a significant amount of stress for her son and the family.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Miss B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

What should have happened

8. Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (‘the code of practice’) sets out the process for carrying out EHC needs assessments and producing EHCPs. The code of practice is based on the Children and Families Act 2014 and the Special Educational Needs and Disability Regulations 2014 (SEND regulations 2014). It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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; and
• the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks.
9. As part of the EHC assessment councils must gather advice from relevant professionals. This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an educational psychologist.
10. Those consulted have six weeks to provide the advice.
11. The code of practice says where there are exceptional circumstances, it may not be reasonable to expect local authorities and other partners to comply with the time limits. The SEND regulations 2014 set out specific exemptions. These include where:
• appointments with people from whom the local authority has requested information are missed by the child or young person (this only applies to the duty on partners to comply with a request under the EHC needs assessment process within six weeks);
• the child or young person is absent from the area for a period of at least 4 weeks;
• exceptional personal circumstances affect the child or his/her parent, or the young person, and
• the educational institution is closed for at least 4 weeks, which may delay the submission of information from the school or other institution (this does not apply to the duty on partners to comply with a request under the EHC needs assessment process within six weeks)
12. The child’s parent or the young person should be informed if exemptions apply so they are aware of, and understand, the reason for any delays. Local authorities should aim to keep delays to a minimum and as soon as the conditions that led to an exemption no longer apply the local authority should complete the process as quickly as possible. All remaining elements of the process must be completed within their prescribed periods, regardless of whether exemptions have delayed earlier elements.
13. The Education Act 1996 (Section 19) says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
14. Councils also have some flexibility with regard to the time taken to set up alternative provision. However, they must make provision from the sixth day in exclusion cases.

What happened

15. Miss B’s son has autistic spectrum disorder and was attending a mainstream school. On 5 July 2021 Miss B asked the Council to carry out an EHC needs assessment. The Council decided to process the request following the school holidays and allocated an officer to deal with the case in August.
16. The Council’s panel considered the request for an EHC needs assessment on 8 September but decided it did not have enough evidence from the school to make a decision. The Council asked the school to provide more information and considered the case again on 20 October when it agreed to carry out an EHC needs assessment.
17. The Council’s panel considered the needs assessment and proposed draft EHCP on 9 February 2022. The panel decided Miss B’s son’s needs could be met within the school without an EHCP.
18. Miss B appealed that decision in April 2022. The Council conceded the appeal on 18 May 2022.
19. On 8 June the Council held a meeting to discuss proposed amendments to the draft EHCP. At that meeting the Council decided it needed more information from the educational psychologist.
20. Miss B provided the Council with details of the schools she wanted consulted on 8 June. Miss B also contacted the Council to raise concerns that her son was close to permanent exclusion on 14 June.
21. The Council’s complex case panel considered the case on 15 June and decided to ask the educational psychologist for a reassessment. The Council said it would consult schools once the reassessment had taken place.
22. Miss B’s son was permanently excluded from school on 21 June. Following that the Council began consulting the schools Miss B had identified. The Council also suggested Miss B consider a school for children with social, emotional and behavioural difficulties (SEMH). Miss B declined that option as she said her son’s behavioural needs were due to his autism.
23. The Council made a referral for home tuition for Miss B’s son on 28 June. However, as Miss B and her husband both work full-time home tuition was not appropriate.
24. In October 2022 the Council identified a suitable placement for Miss B’s son and he began attending part-time on 15 November.
25. At the time of the Council’s response to my enquiry it had not yet issued an EHCP due to the delay receiving an updated report from the educational psychologist. The Council expected that report to be available by the end of term in December 2022.
26. In response to my enquiries the Council accepts it delayed completing the EHCP and in providing education once Miss B’s son was excluded. As remedy for that the Council offered £300 per month to reflect the missing education and £250 to reflect the inconvenience of the delays. The Council also says as a result of this case it has identified the need for more flexibility in the education provision for pupils who are not attending school where home tuition is not considered appropriate or cannot be accommodated by the family.

Analysis

27. Miss B says the Council delayed completing an EHC needs assessment, delayed telling her the outcome of that assessment and then delayed issuing a final EHCP.
28. Under the code of practice, referred to in paragraph 8, the Council is required to tell parents whether it will complete a needs assessment within six weeks of receiving a request. Miss B requested a needs assessment on 5 July 2021. However, the Council did not tell Miss B until October 2021 it intended to complete a needs assessment. The Council therefore did not comply with the statutory timescales and that is fault. I am particularly concerned about that because the documentary evidence I have seen shows the Council deliberately delayed considering the case until after the school holidays which contributed to the failure to adhere to the timescales set out in the code of conduct. There is no provision in the code of conduct to put the request for an EHC need assessment on hold during holiday periods.
29. I am also concerned the Council failed to meet the timescale set out in the code of conduct for notifying parents about whether the Council intended to issue an EHCP. The code of practice is clear the Council is required to make that decision and notify it to parents within 16 weeks of the request. Miss B asked for an EHC needs assessment on 5 July 2021 but the Council did not tell her it did not intend to issue an EHCP until 9 February 2022. That is considerably beyond the 16 weeks set out in the code of practice and is fault.
30. I am also concerned about the ongoing delays that have taken place issuing a final EHCP. The evidence I have seen satisfies me the Council conceded the appeal on 19 May 2022. However, as of the Council’s response to my enquiries on 21 November 2022 it had still not issued a final EHCP. I recognise part of the reason for the further delay is the Council, along with Miss B, has agreed another educational psychology assessment is required before the EHCP can be finalised. I also recognise the Council has experienced delays identifying an educational psychologist to complete the report. While I understand those delays the Council knew about the need for an updated educational psychologist’s report in June 2022 and therefore it failed to comply with the timescales set out in the code of practice. That is fault.
31. Miss B says if the Council had completed the EHC needs assessment in accordance with the statutory timescales her son would not have been permanently excluded from his school. Miss B also says it is possible the Council could have identified a suitable alternative placement before that happened. I cannot speculate about that, especially as the Council initially decided an EHCP was not necessary. I cannot comment on that decision because it is a decision Miss B appealed, which puts it outside the Ombudsman’s jurisdiction. However, had the Council complied with the statutory timescales for the EHC needs assessment and issued a final EHCP following the tribunal proceedings in accordance with the timescales set out in the code of practice it is likely Miss B’s son would have had an EHCP in place earlier. I am therefore satisfied the Council’s delays have led to Miss B’s son missing out on special educational needs provision. The delays also resulted in a delay to Miss B being able to appeal the EHC needs assessment and any final EHCP.
32. Miss B is also concerned the Council failed to put in place education for her son when he was excluded from school in June 2022. As I say in paragraph 14, when a child is permanently excluded from school the Council must put in place education from the sixth day of the exclusion. The Council accepts this did not happen in this case. I note the Council offered Miss B home tuition, which she was unable to accept as both she and her husband work full-time. The Council accepts in those circumstances it should have the option of alternative provision outside the home. As the Council did not put in place education for Miss B’s son between 21 June 2022 and 15 November 2022 it is at fault.
33. As remedy for the missing education and special educational needs provision the Ombudsman will normally recommend an amount between £200 and £600 for each month of missed education. In this case Miss B’s son did not receive any education between 21 June 2022 and 15 November 2022 and if the EHCP process had been managed properly it is likely he would also have received some special educational needs provision had he been receiving education during that period. Taking into account the level of Miss B’s son’s special educational needs and the fact he is currently receiving part-time education and was receiving part-time education before he was excluded I consider an appropriate remedy would be for the Council to pay Miss B £400 for each month of missed education. Taking into account the summer break that makes a total of three months missed education. I therefore recommended the Council pay Miss B £1,200 to reflect that. In addition, I recommended the Council pay Miss B £250 to reflect her time and trouble in pursuing the complaint and the delay to her appeal rights. The Council should also act to ensure the EHCP is issued promptly for Miss B’s son and within no more than one month of my decision. I further recommended the Council carry out a training session for officers dealing with EHCP’s to ensure they are aware of the timescales they must adhere to. In addition I recommended the Council provide evidence to the Ombudsman of the steps it is taking to identify education provision for children not attending school where home education is not an option. The Council has agreed to my recommendations.

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Agreed action

34. Within one month of my decision the Council should:
• apologise to Miss B;
• pay Miss B £1,450;
• issue the final EHCP if the Council has not already done so.
35. Within two months of my decision the Council should:
• carry out a training session for officers dealing with EHCPs to ensure they are aware of the timescales they must adhere to;
• provide evidence of the steps it has taken or is taking to identify alternative education provision for children not attending school and not able to receive home tuition.

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Final decision

36. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman