Summary: There was fault in the Council delaying finalising an EHCP in line with statutory requirements. This delay caused Miss X avoidable frustration and distress. It also meant Miss X’s daughter missed out on special education provision they would have been due, if but for the delay. The Council have already apologised and made an offer of a financial remedy. It has agreed to increase this offer to fully recognise the injustice to Miss X and her daughter.

The complaint

1. Miss X complained the Council delayed completing an Education, Health and Care needs assessment (EHC), and delayed finalising an EHC plan for her daughter (Y). Miss X said the Council’s actions delayed Y receiving special education provision (SEP), which it agreed in the delayed EHCP.
2. Miss X said it caused her avoidable frustration and distress because of the uncertainty she experienced. She said it impacted on Y because she missed education.

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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 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)
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).
6. When considering complaints, if there is a conflict of evidence, 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.

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How I considered this complaint

7. I spoke to Miss X and considered the information she provided.
8. I considered the Council’s comments and the documents it provided.
9. I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

11. A child with special educational needs (SEN) may have an 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.
12. 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.

13. 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)
14. 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.

What happened

15. In late May 2022, Miss X sent the Council a request for an EHC needs assessment (EHCNA) for her daughter. The Council told me it received this request but because of an administrative error, it did not properly log the request or take any other action at that time.
16. In late July, Miss X complained to the Council saying she had not heard anything about her request. Two days later, the Council sent Miss X a reply saying it had got her request, it would now consider the information and get back in touch.
17. The Council said, in early August, an officer from the SEN casework team spoke to Y’s school about Miss X’s request. It then spoke to Miss X in mid-August giving her an update and would keep her updated about its intentions. At that point it closed Miss X’s complaint.
18. In early September, Y’s school (School A) sent the Council a form which highlighted Y’s educational needs. The Council said because of a further administrative error, it logged this form as a new EHCNA request, which had the effect of re-starting the EHCNA process at that point.
19. In early October, Miss X made another complaint to the Council. In that complaint she said;
• there was still no update about her request for an EHCNA;
• she had been unable to speak to a caseworker;
• her daughter was no longer attending school.
20. In late October, the Council sent Miss X a final response to her complaint. It said there had been another mistake, meaning it had re-started her already delayed EHCNA request. The Council apologised for the delays this caused.
21. In response to the part of Miss X’s complaint that her daughter was not going to school, the Council said it would arrange a meeting between itself, Miss X and School A, to try and resolve Y’s attendance. It said it had not seen any medical reason Y could not go to school.
22. In early November, the Council went to this meeting. The Council told me in its response to my enquiries, it was then aware at this point Y was not receiving full- time education. It also accepted it did not confirm the provision School A were providing Y was sufficient.
23. In mid-November, the Council wrote to Miss X saying it would carry out an EHCNA. According to the report I have seen, because Y was finding school difficult, Miss X had decided to keep her at home. It also said Miss X had declined an offer made by the school of a reduced timetable, saying she would only consider a full-time timetable.
24. The evidence from this report suggests the Council were intending to try and reintegrate Y back into School A, with a reduced timetable initially. The Council never followed this up, until the action it took in March, as highlighted in paragraph 26.
25. In early February, Miss X asked the Council to consult with School B, because she wanted Y to go there. In late February, the Council issued a draft EHCP, and it started a consultation with School B. It also consulted with several other education placements.
26. In early March, the Council had an email exchange with Miss X about alternative education provision for Y. The evidence shows at this point Miss X was unwilling to send Y to School A, saying she did not think it was a suitable school because of bullying.
27. At this point, the Council considered other options for providing Y with suitable provision. The evidence shows it did this along with Miss X and the special educational needs coordinator at School A.
28. This included a consultation with College C, who had told the Council it could meet Y’s needs and allow her to enrol immediately. Miss X declined this offer and gave reasons why she was unhappy with this as a placement for Y.
29. In late April, the Council approved additional funding for Y, and they started online tutoring while not at school.
30. In early June, the Council issued a final EHCP, naming School B as the education placement for Y, from September onwards.
31. In response to my enquiries, the Council accepted there were delays in completing Y’s EHCP, but it also said Y would not have been able to start at School B earlier if but for delays, because the placement was not available.

My findings

Delays to EHCP process

32. Miss X asked for an EHCNA in May and having agreed it would complete an EHCP, the Council should have issued a final by mid-October. It did not do so until early June, which was very late and that is fault. The Council have accepted this fault and have apologised to Miss X.
33. In its response to my enquiries, the Council gave reasons for the delays and re iterated an apology to Miss X. It said it recognised it had caused Miss X avoidable distress and uncertainty and made an offer of a payment of £250 as a symbolic remedy. I did not believe this was sufficient to remedy Miss X’s injustice and the Council have agreed an appropriate remedy.

Missed special education provision (SEP) / alternative provision (AP)

34. When it issued the final EHCP in June, the Council agreed Y had specified SEN, for which she had SEP outlined in her EHCP. The Council said Y’s existing school; School A, could have provided most, but not all, of this SEP.
35. But for the delays in finalising Y’s EHCP on time, Y would have been due some form of SEP from the start of the academic term in late October onwards. I cannot say what that SEP would have been, or whether School A would have been suitable, because the Council may have made a different decision about the placement in October 2022, that it eventually made in March 2023.
36. Notwithstanding, the Council had identified a suitable placement (College C) for Y in March, but Miss X declined this offer. On balance I believe the Council could have finalised the EHCP at that point, and secured SEP for Y, as it had a duty to do.
37. The Council told me because Miss X had expressed a preference for School B, and declined College C, it was waiting for the outcome of this consultation before finalising Y’s EHCP in line with Miss X’s preferences. Again, on balance, I find it likely that had the Council named College C at the earliest opportunity, Miss X would have disagreed and appealed that decision.
38. The Council have accepted it did not do enough to consider the provision that School A were providing for Y, when it was aware she was not attending school in late October. The evidence shows it was trying to organise provision for Y continuously in March, and in April, Y started online tuition.
39. In not securing Y’s SEP when it ought to have done and for not taking adequate steps to secure AP when it was aware Y was out of school, I find this meant Y was without any SEP or indeed AP (while out of school) for the equivalent of an academic term (October to March). This was a fault by the Council, and it caused Y an injustice because of missed education provision.
40. I do not believe it was a fault by the Council it did not eventually secure Y’s SEP after March until she started at School B. Y could have reasonably attended College C and had SEP from March onwards and this would have met their needs in this respect, while Miss X pursued the placement she wanted.

The injustice to Y

41. I have considered the injustice to Y. The affected period included year 10, which involves preparation for GCSE’s. Additionally, some of the period Y was not attending school was outside the Council’s control. Accordingly, the Council have agreed a remedy with these considerations in mind.

Service improvements

42. In its response to my enquiries, the Council explained it had aligned more staff to its business support function to prevent a recurrence of the delays Miss X experienced. As a result, I do not need to make any service improvement recommendations.

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Agreed action

43. Within one month of the date of my decision, to recognise the distress it caused Miss X in the delays finalising the EHCP, and the missed provision Y would have been due, the Council have agreed it will pay Miss X £2000.
44. The Council should provide us with the evidence it has complied with our recommendations.

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Final decision

45. There was fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman