Summary: Mrs X complained about the Council’s failure to finalise her daughter’s Education, Health and Care Plan within statutory timescales, that she did not receive suitable education or receive specialist services outlined in her plan when it was finalised. We found fault because the Council failed to complete the plan on time, to deliver suitable education or to deliver services specified in the plan. Mrs X suffered avoidable frustration and distress and her daughter missed some of the education she should have received. To remedy the injustice caused by these faults, the Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complains of issues relating to her daughter, Y’s, education. Specifically, she complains that:
• the Council did not complete Y’s Education, Health and Care plan (EHCP) within the required timescales;
• the Educational Psychologist (EP) used Mrs X’s own assessments to write her report rather than meet with Y herself;
• Y had no education from September 2022 to January 2023;
• the Council agreed a tutor during this time but this never materialised;
• the Council has not delivered provision specified in her EHCP since it was finalised in December 2022; and
• the Council has named School B in section I of the EHCP.
2. Mrs X says this has caused emotional and financial distress for the family, that Y’s mental health has suffered and she has missed out on education.

Back to top

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. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)
9. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

11. Paragraph six (above) applies to this complaint. I have exercised discretion to investigate Mrs X’s complaint back to October 2021. The issues Mrs X complains of linked to the EHCP and the assessment process began at this time and it is reasonable to include this period in my investigation.
12. I have exercised discretion to investigate the period of time after Y’s first final EHCP was issued which then gave Mrs X the right to appeal to tribunal. At this time, the Council was still consulting with various schools to see if they could accommodate Y’s needs. Given this, I find it reasonable that Mrs X did not use her right to appeal the EHCP.
13. I did not investigate the Council’s later decision to name School B (a special school) in section I of Y’s second final EHCP. Any decision relating to this is appealable at tribunal and is not something we will investigate.
14. My investigation ends in March 2023 which is when Mrs X brought her complaint to us.

Back to top

How I considered this complaint

15. I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
16. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

Back to top

What I found

Special educational needs

17. A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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. Section F of the plan is about the special educational provision needed by the child or the young person.  
18. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
19. The council has a duty to secure the specified special educational provision in an EHCP 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)

Appeal rights

20. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.

Timescales and process for EHCP assessment

21. 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 EHCPs. 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 EHCPs “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 (unless certain specific circumstances apply).

Alternative provision

General section 19 duty

22. 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 (S19) or alternative education provision.

Inability to attend due to health needs

23. 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))
24. 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))
25. 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)

Focus report

26. 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.
27. 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

28. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

What happened

29. I have set out below a summary of the key events. This is not meant to show everything that happened.
30. In mid-October 2021, Mrs X contacted the Council to ask for an EHC needs assessment (the assessment) to be done for Y. At that time, Y was in her final year at primary school and would be moving to secondary school in September 2022. Y has multiple complex needs.
31. In mid-November 2021, the Council agreed to complete the assessment for Y which would help to decide if she needed an EHCP. The Council sent out requests to various agencies for them to comment on Y’s potential needs.
32. By the end of February 2022, the only remaining contribution needed for the assessment was a report from an EP.
33. At the beginning of March 2022, Y was allocated a place at a local secondary school (School A) as part of the national offer process for secondary schools.
34. At the end of April 2022, the Council emailed Mrs X to advise that delays in completing the assessment for Y were due to waiting for an EP to be available to write the report on Y. The Council advised it had allocated an EP to Y’s case and she would be assessed by the end of June 2022.
35. Early in June 2022, the Council confirmed to Mrs X that it had arranged a private EP to write a report on Y’s needs.
36. A few days later, Mrs X complained to the Council about the length of time it was taking to complete the assessment process. The Council sent its stage one complaint response towards the end of June 2022. The Council upheld the complaint and:
• agreed it had not acted within statutory timescales as the decision whether to issue an EHCP for Y should have been made already;
• confirmed that an EP report had still not been completed;
• explained some of the steps it was taking to address overdue EHCP assessments; and
• confirmed Y’s assessment was a priority for completion, given that she was soon to move to secondary school.
37. At the beginning of July 2022, the EP sent the report to the Council. Following this, by mid-July, the Council had agreed to draft an EHCP for Y.
38. The Council issued a draft EHCP by the end of July and then sent consultation letters to nine schools asking if they were able to meet Y’s needs. Of those consulted, only one school said it could meet Y’s needs, School B.
39. In mid-August 2022, School B emailed the Council to say it could take Y on roll from October half term.
40. At the beginning of September 2022, School A, which had been allocated to Y in March as her school for Year 7, replied to the consultation letter to say it could not meet her needs. Y did not attend School A at the start of Year 7 or at any time after this.
41. In the second half of October 2022, the Council agreed a personal budget for Y to attend counselling sessions and for a course to help her sleep.
42. At the end of October 2022, the Council issued Y’s first final EHCP. The EHCP did not name a specific school, but rather a ‘specialist placement’ as a type instead.
43. In mid-late December 2022, the Council issued its second final EHCP. The EHCP now named School B.
44. Y was put on roll at School B in the middle of January 2023. Mrs X says that despite a positive start at the school, within a week, Y was struggling to complete more than one lesson in a day, was attending for only a few minutes or refusing to attend at all.
45. Mrs X says that by February 2023, as there were no other Year 7 or 8 children, Y was having lessons on her own and did not feel comfortable in school.
46. By the middle of February 2023, Mrs X advised the Council that Y was struggling at School B due to being the only child in her year group. Mrs X said this meant the provision in her EHCP could not be delivered as Y should be in a peer group of 2-4 children.
47. The Council responded at the beginning of March to advise that it understood Mrs X’s worries about Y’s peer group at School B not being the same age as her. The Council told Mrs X that the nature of specialist provision meant that any such group may be very small and varying in ages to meet individual needs. It said the school would carefully monitor and evaluate any groups and relationships against progress and mental health needs. The Council advised Mrs X to continue to contact School B about any worries she may have and to give Y more time to settle in and adjust.
48. The Council also directed Mrs X to the Ombudsman if she remained unhappy. Mrs X brought her complaint to us in March 2023.

Analysis

EHCP assessment and timescales

49. Guidance states that the process for the assessment must be carried out in a timely manner and steps must be completed as soon as practicable.
50. When the Council agreed to carry out the assessment on Y in mid-November 2021, statutory timescales say this should have been completed by week 12 in the process which was the beginning of January 2022. Instead, the assessment was completed early in July 2022. The Council decided in mid-July that it would draft an EHCP. Mrs X was now 39 weeks into what should have been a 20-week process.
51. The Council says the delay was due to the difficulties in finding an EP to compile a report for the assessment. Whilst I acknowledge these difficulties, this delay in completing the assessment is still sufficient to make a finding of service failure. It meant that Mrs X and Y had a significant wait to find out whether the Council intended to move to the next step in the process and issue a draft EHCP. This would have caused Mrs X frustration and distress, particularly as Y was soon to move from primary to secondary school. I have made a recommendation below to remedy the injustice caused.
52. The Council has shared with the Ombudsman its action plan to manage demand for EPs, as part of complaints unrelated to Mrs Y. I welcome the steps the Council has taken to address the issues. With this in mind, I will not make any further recommendations related to the Council’s access to EPs.
53. As part of the next steps in the EHCP process, the Council sent consultation letters to schools at the end of July 2022. This was just after they would have closed for the summer holidays. The schools should have replied to the Council within 15 days and before the middle of August. As they were technically closed, many did not reply until the new term had started again in September.
54. The Council did not receive the final consultation response until the middle of October 2022. This was a further delay for Mrs X and Y. It was a consequence of the initial delay in the assessment process being completed late which led to the consultations being sent out during the school summer holidays. The Council cannot be held responsible for the speed at which the schools replied. HoHoHowever, had the assessment been completed when it should, I am satisfied this added delay is unlikely to have happened. The delay would have caused added frustration and distress to Mrs X. I have made a recommendation below to remedy the injustice caused.
55. The Council issued two versions of a final EHCP in 2022, one in October and one in December 2022. The first of these did not name a school. The second named School B. School B, however, had emailed the Council in August 2022 to say it could admit Y after the October half term holidays of 2022.
56. The Council overlooked this response. At the beginning of October 2022, the Council emailed Mrs X to say that there had not yet been any consultation responses offering Y a place, which contradicts School B’s August offer.
57. At the beginning of November 2022, the Council then emailed Mrs X to confirm School B was the only offer it had received and was in the process of consulting with other schools. The lack of accurate communication is fault. It would have caused further frustration to Mrs X as she had been given an inaccurate picture of what was happening with the consultation process. I have made a recommendation below to remedy this injustice.
58. Y’s first final EHCP should have been issued by the 20-week deadline which was the beginning of March 2022. Instead, it took over 54 weeks to complete and was issued nearly eight months later than it should have been. This is fault. This significant delay would have caused Mrs X further distress and frustration. I have made a recommendation below to remedy this injustice.

Educational psychologist’s report

59. Mrs X complained that her privately funded assessments were used as a basis for the Council’s EP report. She also says the EP did not meet with Y when completing the report as the EP was ill on the day of the appointment.
60. In response to my enquiries, the Council highlighted sections of the Code that set out how EPs should consult any other psychologists known to be involved with the child or young person. The Council also said it was not its position to specify how an assessment should take place and that all EPs used were registered with relevant professional bodies.
61. In the circumstances of this complaint, I am satisfied that in using EP reports originally commissioned by Mrs X, there is no fault on the Council’s part.

Education in September and October 2022

62. Mrs X complains there was no education in place for Y from the beginning of September 2022, to when she started at School B in January 2023.
63. It was clear from the EP report that Y had significant anxiety around attending School A, linked to her disability and health needs.
64. At the beginning of September 2022, School A also sent its consultation response and said that based on Y’s draft EHCP it would not be able to meet Y’s needs, citing various reasons linked to the draft EHCP to say why it was taking this stance.
65. The Council’s view is that Mrs X chose to educate Y at home from September 2022, that there was a suitable offer of education at School A and the parents chose not to send Y there.
66. Mrs X disagrees with this, saying she chose to take Y off roll at School A as it had clearly said it could not meet her needs. I have seen no evidence to suggest Mrs X wished to home educate Y.
67. In response to my enquiries, the Council said its view was that it did not consider it had any duty to provide alternative education under S19 of the Education Act 1996 (the Act) from September to October 2022. It also says School A was not considered inappropriate until the EHCP was issued confirming Y needed to attend a ‘specialist placement’.
68. I disagree that there was an offer of suitable education in place for Y from September 2022 to when her EHCP was first finalised at the end of October. It was clear that School A was not an appropriate placement as per its consultation response regardless of whether Mrs X chose to remove Y from the roll or not. I am satisfied it would not have been reasonable for Mrs X to be expected to send Y to School A when it had so clearly said it could not meet her complex needs and Y was expressing significant worries about attending there.
69. When the Council became aware of this, it should have been ready to take responsibility for providing S19 education itself. Failure to do so was fault. This would have led to further frustration and distress for Mrs X. It also led to a period of two months where there was no alternative education in place for Y at all. I have made a recommendation below to remedy this injustice.

Tutoring

70. Mrs X complains that 15 hours per week tutoring was agreed in October 2022 but that this never materialised.
71. In response to my enquiries, the Council said this was offered as a goodwill gesture but that despite its best efforts, it could not find a tutor. I do not find fault in the Council’s actions here.

Education in November and December 2022

72. Y’s first final EHCP did not name a specific school, but instead a ‘specialist placement’ as a type.
73. In response to my enquiries, the Council accepted that a special school was required from the time the first final EHCP was issued. School A is a mainstream secondary school. The Council accepts it had a duty under Section 42 (S42) of the Children and Families Act to secure the provision set out in Section F of Y’s EHCP. As Y was not attending any specialist provision, this meant Section F could not be delivered.
74. The Council suggested a remedy to rectify the injustice caused by this lost provision. It suggested £200 per month for each of November and December of 2022. I do not view this as a satisfactory remedy for the injustice caused because Y had no access to any education at a specialist placement during this time or any other education at all and therefore did not receive the provision set out in Section F of her EHCP. I have made a recommendation below to remedy the injustice caused.

Education from January 2023 until March 2023 and Section F provision

75. Mrs X complains that School B was not able to deliver some of the provision outlined in Section F of Y’s EHCP as there were no other children in Year 7 or Year 8 at the school.
76. Y’s EHCP recommended that she receive two lots of 60 minute 1:1 support sessions, from a specialist teacher, per week. It states that after she had built a trusting relationship with this professional, it recommended she slowly build up to working within a small social skills group of 2-4 peers.
77. I am satisfied, in the circumstances of this complaint, that not having children of the same age as Y does not mean School B was unable to deliver this aspect of Section F provision.
78. Due to her health needs, Y was struggling to regularly attend School B from the very beginning of the placement. I cannot say it is more likely than not that she could have sufficiently accessed any Section F provision organised by the school, regardless of the age of her peers and whether the sessions were in place or not. On this basis, I do not find fault with the actions of the Council in relation to a failure to deliver Section F provision under S42.

Back to top

Agreed action

79. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mrs X for the delay in completing the assessment, the linked delay in sending out consultations to schools, not advising her of the placement offer from School B in a timely manner, delay in sending out the first final EHCP, not providing suitable education from September to October 2022 and for failing to deliver Section F provision or any other education during November and December 2022;
• pay Mrs X £800 to acknowledge the distress, frustration and uncertainty caused by the Council’s failure to issue Y’s EHCP in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHCP in March 2022 until the date it issued the plan in October 2022; and
• pay Mrs X £2400 to acknowledge that Y did not receive any education from September to December 2022, including a lack of Section F provision in November and December 2022.
80. Payments made should be used to benefit Y’s education and are in line with the Ombudsman’s guidance on remedies.
81. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

82. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman