Summary: The Council was at fault for delaying in completing a child’s Education, Health and Care needs assessment and for not putting in place all the special educational provision after they were permanently excluded from school. As a result the child missed out on receiving all of the provision in their Education, Health and Care plan. To remedy the injustice caused, the Council agreed to apologise, make a payment for the loss of education to the child and put in place some of the missed provision.

The complaint

1. Ms X complains the Council failed to meet the deadline to complete her child’s Education, Health and Care needs assessment and failed to put in place all of the provision in her child’s plan.

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

4. As part of this investigation I considered the information provided by Ms X. I discussed the case over the telephone with Ms X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council for comments.
5. 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

Law and guidance

6. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
7. 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:
• 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;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
8. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education 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.
9. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
10. Those consulted have a maximum of six weeks to provide the advice.
11. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)
12. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
13. 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.
14. 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

15. In this section I have not summarised every piece of correspondence between Ms X and the Council but only recorded the key points and events.
16. On 24 February 2022, Ms X asked the Council to carry out an EHC needs assessment for her child Y. The Council agreed to this and commissioned reports from an Occupational Therapist (OT) and an Educational Psychologist (EP). These reports were due to be provided by early May 2022, however they were not received until late June 2022.
17. After obtaining the necessary expert reports and sending the case to its SEND panel, the Council decided it would not issue an EHC plan for Y. The Council wrote to Ms X with its decision on 28 July 2022.
18. In early August 2022, Ms X made a formal complaint to the Council about the EHC needs assessment. Ms X raised concerns about the OT report the Council obtained and that the Council had missed deadlines to provide her with a decision.
19. The Council responded in mid-August 2022 to Ms X’s complaint. The Council told Ms X she could appeal to the SEND Tribunal to challenge its decision not to issue an EHC plan for Y. The Council said it should have provided Ms X with a decision on whether to issue an EHC plan for Y by 16 June 2022 and this delay was caused by peak workloads and staff shortages. The Council apologised.
20. On 11 August 2022, the Council held a meeting with Ms X and agreed to reconsider whether Y needed an EHC plan. The Council said it obtained updated advice from the EP. In response to my enquiries the Council confirmed it had re-consulted with the author of the EP report and clarified Y needed full time support.
21. The Council sent Y’s case back to its SEND panel and decided Y needed an EHC plan. The Council issued a draft EHC plan for Y on 9 September 2022 and then a final EHC plan for Y on 23 September 2022. The EHC plan contained the following provision:
• A learning mentor who provides 1:1 support.
• Dedicated teacher and learning mentor time of 5-10 minutes daily.
• Individual and small group teaching of 30 minutes daily.
• Priming sessions where new learning and material are introduced.
• A Speech and Language Therapy (SALT) programme. Y was to receive four hours of SALT support throughout the school year from a trained therapist.
• 30 minutes of daily sessions of SALT support by a trained member of staff at school.
• A Psychoeducation programme (20-30 minutes per week) delivered one to one or in small groups to develop Y’s understanding of anxiety.
• An Occupational Therapy programme. Y was to receive direct support from an OT of four and a half hours throughout the school year.
• Two weekly sessions of 20 mins delivered by an appropriately trained staff member on OT sensory strategies and fine motor skills.
22. Ms X continued to escalate her complaint through the Council’s complaints process as she was not happy with the time taken to produce Y’s EHC plan. Ms X said this meant no provision was in place when Y returned to school in September 2022. Ms X also raised concerns about the time taken to obtain an OT report and said the Council should have commissioned a private report. Ms X asked the Council for a financial remedy for the delays in issuing the EHC plan and impact this had on her and Y.
23. The Council provided its final complaint response in October 2022. The Council said:
• The decision whether to issue an EHC plan is normally taken within 16 weeks of the request but took 20 weeks in this case. The Council said the SEND Code of Practice does not provide guidance on a situation where additional evidence was provided after a decision not to issue an EHC plan was made. The Council said in Ms X’s case it did not treat this as a new request for an EHC plan and took a further five weeks to issue the plan after deciding in August 2022 to issue a plan.
• It provided Y’s school with the funding to put in place the special educational provision and this was backdated until the start of term in September 2022.
• It would not provide Ms X with a financial remedy as it took reasonable steps to address her concerns.
24. On 17 November 2022, Y was permanently excluded from school. On 22 November 2022, the Council consulted with several schools to see if they could provide Y a school placement. The Council also consulted with an alternative education provider to provide Y with education while the Council found Y a permanent school placement.
25. Shortly after, Y started to receive provision from the alternative provider which consisted of 18 hours of one to one tutoring per week. However, Y did not receive the SALT sessions and support and the Psychoeducation programme listed in her EHC plan.
26. In late April 2023, Y started a new school placement.

Analysis

Delay in carrying out the EHC needs assessment and producing an EHC plan

27. Ms X initially requested an EHC needs assessment for Y on 24 February 2022. The Council did not provide her with a decision until 28 July 2022 and this was to not issue an EHC plan for Y. The Council recognised it delayed in issuing this decision to Ms X and apologised. While this is welcomed, the reasoning the Council gave for the delays was it was short staffed and had peak workloads. Ms X also questioned why the Council did not consider obtaining private reports for Y, given the peak workloads. The Council did not respond to this part of Ms X’s complaint nor has it provided an explanation as to whether it considered obtaining private reports for Y. This was fault.
28. However, the Council then decided it should issue an EHC plan for Y. This was after it re-consulted with the author of the EP report and confirmed Y needed full time support. The Council confirmed it did not treat this as a new request for an EHC needs assessment.
29. From the evidence seen, Ms X did not provide any further information to make the Council change its decision to issue Y with an EHC plan and it appears to be as a result of misunderstandings between the Council and author of the EP report. I am therefore satisfied the Council should have issued Y with a final EHC plan 20 weeks after Ms X made the request for an EHC needs assessment. Failure to do so was fault.
30. As I have found fault I need to assess what injustice this caused. Had the Council issued Y with an EHC plan within 20 weeks of Ms X’s request for an assessment, Y would have received a final EHC plan by 14 July 2022 and provision would have been in place sooner. Y therefore started receiving the provision in her EHC plan later than she would have done if not for the Council’s fault. Ms X’s appeal rights to challenge the content of the plan were also delayed.
31. Ms X argued that because Y did not have the provision in her EHC plan in place from September 2022, when she returned to school, her behaviour worsened and she was expelled. On balance, I cannot say whether the delay in issuing Y’s EHC plan caused her expulsion, however it has created uncertainty for Ms X and this is an injustice.

EHC provision after issuing the final EHC plan

32. The Council confirmed after issuing Y’s final EHC plan in late September 2022, it provided Y’s school with funding to put in place the provision and backdated this funding to the start of term in early September 2022.
33. We would normally expect the Council to take no more than 4 weeks to put in place straightforward provision. Complex provision should be available within no more than half a term from when a final EHC plan is issued or amended. As Y was only in school for just over a month from when the Council issued the final EHC plan, I do not consider the Council was at fault.
34. However as explained above, Y’s EHC plan should have been completed sooner, and if it had she would have likely started to receive her special educational provision from the start of September 2022.
35. After Y was expelled, the Council consulted with several schools to find her a placement and also put in place one to one tuition with an alternative provider. However, Y did not receive a SALT programme at the alternative provider or the 30 minute daily sessions from a trained staff member to help with her speech and language. Y also did not receive a Psychoeducation programme. This was fault.
36. The Council has said it will make up the four hours of SALT support from a therapist. While this is welcomed, Y has still missed out on the daily 30 minute sessions to help with her speech and language and the Psychoeducation programme.

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Agreed action

37. Within one month of my final decision, the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Write to Ms X and apologise for the delay in issuing Y’s EHC plan and for not providing all of the special educational provision after Y was permanently excluded from school.
• Pay Ms X £1,800, to use as she sees fit, in recognition of the loss of SEN provision for Y, which includes SALT support and a Psychoeducation programme from September 2022 until May 2023. In coming to this figure I have considered our guidance on remedies. This recommends between £900 and £2,400 per term for lost provision. In this case I have considered the fact the Council put in place alternative provision of one to one tutoring for Y from November 2022 but not all of the provision in her EHC plan was delivered.
• Pay Ms X £500 to acknowledge the distress and uncertainty she has experienced. This includes the distress and uncertainty caused by the delays in issuing an EHC plan, the fact Y did not receive all of her EHC provision and the fact Y was expelled from school.
• Arrange for Y to receive the four hours of SALT from a senior SALT or trained SALT she has missed out on.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation and found the Council was at fault which caused injustice. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman