Summary: Mrs X complains the Council has delayed the reassessment of Child Y’s EHCP and refused to deliver alternative provision in the interim. The Ombudsman finds fault with the Council for delaying issuing the EHCP, and for failing to consider its duty to alternative provision. The Council has agreed to pay financial remedies for the delays and lost education, and implement service improvements.

The complaint

1. Mrs X complains the Council has delayed the reassessment and issuing of the EHCP for Child Y. This has meant they have been out of education and without provision.
2. Mrs X complains the Council has refused to recognise an EP report for Child Y, but has delayed the process due to a lack of EP report.
3. Mrs X complains the Council has refused to explore alternative provision for Child Y and left Child Y without access to education.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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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What I have and have not investigated

6. Since Mrs X complained to the Ombudsman, the Council has told her that it has agreed to a specialist placement for Child Y from September 2024. However, she will need to remain on roll at the mainstream school until then. It has said the mainstream school will need to arrange alternative provision in the interim.
7. Mrs X says this means Child Y will be without education until September 2024. I am not exercising discretion to consider this part of Mrs X’s complaint, as the EHCP has not yet been issued. If Mrs X is unhappy with the placement named in the EHCP, she has appeal rights to tribunal and it would be reasonable to expect her to use these.
8. Additionally, part of Mrs X’s complaint is the Councils fault has resulted in her being unable to work for over a year. I am not exercising discretion to consider this part of her complaint, as issues about compensation and lost wages are better addressed in court.

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How I considered this complaint

9. I considered Mrs X’s complaint and information she provided. I also considered information from the Council.
10. I considered comments from Mrs X and the Council on a draft of my decision.
11. 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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What I found

Legislation and guidance

EHCP

12. 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.
13. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
14. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. 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)

Alternative provision

16. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for 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.
17. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
18. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
19. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
20. 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)

What happened

21. Child Y has an Education, health and care plan (EHCP) with the Council. The school named in the EHCP was a mainstream school.
22. Child Y stopped attending school regularly in 2022. Mrs X says this was because the mainstream primary school could not deliver provision in Child Y’s EHCP and could not support Child Y.
23. The annual review of the EHCP was held by the mainstream school in June 2022. The School submitted the annual review paperwork to the Council on 25th June 2022. In the paperwork, the school advised it could no longer support Child Y and deliver the provision. It requested a new school for Child Y and an educational psychology (EP) assessment.
24. The Council considered the annual review documents. It noted Child Y had achieved less than 50% of their targets, and there were concerns with low attendance and regression in their needs.
25. A representative for Mrs X contacted the Council in August 2022 to advise the Council had gone over the statutory timescales for a decision on the review documents and requested the outcome.
26. Additionally in September 2022, there were discussions between the Council and the school about some short-term solutions, but that ultimately Child Y was unable to attend school and access any support.
27. The Council agreed in September 2022 that it would present the case at the SEND panel with a request for a new placement.
28. Child Y’s case was seen at panel on 14th September 2022. The panel decided it would not approve a change of placement as it did not feel there was enough evidence from the mainstream school that it had put in place strategies to help Child Y.
29. The Council told the school and Mrs X of the decision not to arrange a new placement. The School told the Council it was frustrated by the lack of support from the Council. It said Child Y was not attending school due to their needs and therefore it was unreasonable to expect it to deliver the provision.
30. Mrs X requested a new EHC assessment on 30th September 2022. At the same time, Mrs X submitted a complaint to the Council about its delay in the decision.
31. The Council told Mrs X it would re-present the case to the panel with a view to reassess. This was to include an Educational Psychology assessment.
32. The Council responded to Mrs X’s complaint in October 2022. It recognised it should have told Mrs X of the decision by 28th July 2022 and that it had not suitably communicated with Mrs X.
33. The case was seen at panel again on 26th October 2022 and a reassessment was agreed. The Council had 14 weeks from this date to complete the reassessment and issue the EHCP.
34. In November 2022, the Council enquired about Child Y’s attendance and support at the mainstream school. Child Y was also seen for a Speech and Language assessment.
35. In January 2023, the Council chased the EP assessment. It was told there was a significant delay with the service.
36. The Council chased this again in February and March 2023, with no dates being given due to the backlog in the service.
37. In February 2022, Mrs X submitted a further complaint that the Council had delayed issuing an EHCP due to a lack of EP report. In her complaint, Mrs X said she had a private EP report and asked the Council use this to not delay the EHCP further. Mrs X did not at first receive a response to her complaint.
38. In March 2023, the Council emailed the school seeking further information about support and advising on some strategies for Child Y.
39. In March 2023 the Council also issued its response to Mrs X’s complaint. It apologised for the delay and explained there was a backlog of EP assessments. It said it would continue to work with Mrs X and the school to support Child Y, but that it could not agree to prioritise Child Y for the service.
40. Mrs X remained unhappy and asked to escalate her complaint.
41. The Council issued its final response to Mrs X in April 2023. It upheld Mrs X’s complaint that there was a delay in issuing the new EHCP. It said the delay was due to not being able to source an Educational Psychologist (EP) to carry out an assessment of Child Y which would inform the EHCP and provision. It apologised for the delay but said it could not influence the timescales as this was an issue with the service.
42. Mrs X again asked the Council about the private EP report. The Council told Mrs X that it would not use the private EP report. It told Mrs X this was an “operational decision”.
43. Mrs X remained unhappy and bought her complaint to the Ombudsman in May 2023.

Further information

44. In May 2023 the Council overturned its decision not to use the private EP report and agreed to use it to inform Child Y’s EHCP.
45. The Council issued the draft EHCP in July 2023. At the time of this draft decision, the Council has not issued a final EHCP.

Analysis

Delay in the EHCP

46. The School sent the annual review documents to the Council on June 25th 2022. The Council had until 28th July 2022 to make a decision about whether to amend the EHCP or keep it the same. The Council delayed making the decision and communicating this to Mrs X by six weeks. This was fault by the Council causing Mrs X and Child Y injustice.
47. The Council agreed on 26th October 2022 that it would reassess Child Y. It had 14 weeks from this date to reassess Child Y and issue the EHCP. The EHCP should have been issued by 8th February 2023. As of this decision, the Council has failed to issue the EHCP. This is further fault by the Council causing Mrs X and Child Y injustice, and delaying Mrs X’s appeal rights to tribunal.
48. The Council says the delay was due to the backlog with its Educational Psychology service. Mrs X says she told the Council she had a private EP report that could be used, but it at first said no. It then overturned its decision and agreed to use the report.
49. I accept the problems the Council has had in finding an EP, but it is the Council’s duty to ensure it has enough resources in place to meet the statutory timescales. When it became clear the Council would not receive the psychology report within the 14 week timescale the Council should have considered whether to accept the private report by Mrs X.
50. I cannot say that an EHCP would have been issued or whether, if there had been different provision, Child Y’s attendance at school would have improved. But the delay in completing the reassessment has caused significant uncertainty for Child Y and Mrs X. It has also delayed Mrs X’s opportunity to appeal rights to Tribunal.
51. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to recognise the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. Our guidance on remedies says a moderate symbolic payment may be appropriate to remedy uncertainty caused by fault.
52. We have upheld several complaints against the Council about delayed EHCP assessments caused by lack of educational psychology input in the last year. In response to one (22012228) the Council agreed to provide evidence to the Ombudsman of the actions it was taking to increase educational psychology capacity and reduce waiting times.
53. In July 2023 the Council advised us it was undertaking a priority recruitment programme to attract more EP staff, had enhanced the pay scale for EPs and had attracted four additional EPs since September 2022. It had also established 16 assistant psychologist posts and was providing additional funding to source external EPs. The Council had entered into a new commissioning arrangement from April 2023 to provide EP capacity to complete an additional 700 advice requests over a 12-month period. It also released an update to parents which set out the issues and said in some circumstances, if it accepted a privately obtained report and used this in the EHCP, it would partially reimburse costs. I therefore make no further service improvement recommendations.
54. There is fault by the Council in delaying the decision to reassess, and in issuing the new EHCP. If the Council had acted without further delay, the EHCP should have been issued by February 2023. The Council should pay Mrs X a financial remedy for every month that it delayed issuing the EHCP until it issued the draft EHCP. It should also pay Mrs X a further monthly remedy until the final plan is issued.

Alternative provision

55. The annual reviews documents from June 2022 show that Child Y was out of school, and that the school felt it could no longer meet their needs and deliver an education.
56. Government guidance is clear that where a Council has reason to believe a child is not receiving suitable full-time education, or not receiving the number of hours they could benefit from education, the Council should step in to arrange provision. From June 2022, the Council would have had reason to believe that Child Y was not receiving suitable full-time education.
57. The Council took Child Y’s case to the panel for new placement in September 2022. As the panel declined a change of placement, the Council was of the view that it did not have to provide alternative provision, as no change in placement had been approved.
58. The Council repeatedly told the School it needed to use the funds provided for the EHCP provision to provide an alternative timetable for Child Y, and that the school remained responsible.
59. The Council cannot offload its responsibility for alternative provision without agreement from both sides. The School clearly communicated on several occasions it could not educate Child Y or deliver alternative provision due to her needs, and that she remained without any education. The Council has been somewhat forceful with the school to get it to accept a duty that remained for the Council to manage. The Council was aware the School was not delivering alternative provision, and therefore it was the Councils responsibility to ensure Child Y could access full time education.
60. While the panel rejected a permanent change in full time placement, and recommended a reassessment, the Council should have considered its duty to alternative provision in the interim while the reassessment was being conducted. As recognised above, the reassessment has been significantly delayed due to the Councils own service failure, and this has compounded how long Child Y has been without education.
61. Failure to properly consider its alternative provision duty was fault by the Council, causing Child Y significant injustice. Child Y has been without education for over a year, and with no provision arranged for September 2023. Additionally, I note that Mrs X has paid for a year’s worth of educational visits without repayment from the school or the Council as both sides refused to accept responsibility for the alternative provision.

Complaint handling

62. The Council has accepted there was continuing delay through the complaint handling for this complaint, and that it at first did not provide a stage one response to the second complaint by Mrs X.
63. I consider this fault by the Council and has furthered the injustice and distress caused to Mrs X throughout this period.
64. I also find fault with the Council for failing to consider what injustice has been caused to Mrs X and Child Y when it identified fault during its complaint handling.

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Agreed action

65. Within 4 weeks the Council has agreed to

• Write to Mrs X and apologise for all of the above identified fault
• Partially refund Mrs X for the private EP report in line with the Council’s update to parents in July 2023.
• pay Mrs X £700 to recognise the distress, frustration and uncertainty caused to her and Child Y by the Council’s failure to issue the final EHC plan in line with statutory timescales. This remedy is calculated at £100 per month from the date the Council should have issued the final EHC plan in February 2023 until the date it issued the draft plan in July 2023. 
• When the Council issues Child Y’s final EHC plan, it should provide Mrs X with a further financial remedy. This is to recognise the continued injustice caused by the delay in issuing Y’s final EHC plan from the date of the draft EHC plan in July 2023 up to the date of the final EHC plan. The Council should calculate the payment at £100 per month in line with recommendation above. The Council should make this payment to Mrs X within one month of the date of the final EHC plan.
• Issue Child Y’s final EHC plan. This will give Mrs X her appeal rights to tribunal.
• Consider Mrs X’s request for repayment the cost of educational materials, tuition, educational visits and childcare.
• Pay Child X £7200. This is calculated at £2400 per term to recognise the impact of the loss of education because of the Council failing to consider its alternative provision duty suitably.
• Pay Mrs X £300 in recognition of the distress and delay caused to her because of the Councils delay in decision making and complaint handling.

66. Within 12 weeks the Council has agreed to

• Review how it monitors children out of school where they are not accessing alternative provision, and whether the Council is giving due consideration to its duty to provide alternative provision in these cases.
• Remind complaint handlers that where the Council upholds a complaint and identifies injustice, it should consider if injustice has been caused to the complainant and whether a remedy is appropriate.

67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. I have now completed my investigation. I find fault with the Council for delaying the issuing of the EHCP. I also find fault with the Council for failing to act on its duty towards alternative provision.

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Investigator's decision on behalf of the Ombudsman