The Ombudsman's final decision
Summary: Mrs Y complained about the way the Council dealt with her child’s education and special educational needs provision. We have found fault with the Council’s delay in completing the Education Health and Care needs assessment process and its communication failures, causing injustice. The Council had already accepted fault and offered a remedy for the injustice. We have found the payments it offered for the impact of the missed special educational needs provision and distress and time and trouble are in line with the expectations in our guidance on remedies. It has agreed to make these payments and service improvements. We have not found a failure by the Council to make appropriate alternative educational provision.
The complaint
The complainant Mrs Y complains the Council failed to complete her child, Z’s Education Health and Care needs assessment and issue their Education Health and Care plan within the statutory timescales.
Mrs Y also complains the Council has failed to provide Z with a suitable and accessible full-time education for a number of years.
She says Z has missed out on the education and special educational needs support they should have received because of these delays and failures. This has also affected Z’s wellbeing.
Mrs Y wants the Council to put this right by arranging suitable alternative provision and making an appropriate payment for the missed education and support.
The Ombudsman’s role and powers
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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated Late complaints 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) I have not considered Mrs Y’s complaint about the Council’s actions in the period before March 2022.
This is because Mrs Y did not complain to us about the way the Council dealt with Z’s education until June 2023. Based on the evidence seen, I do not consider there are good reasons why Mrs Y could not have brought this part of her complaint to us before this.
The SEND tribunal proceedings The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision.
The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
In this case, Mrs Y appealed to the SEND Tribunal against the placement and the special educational provision in the final EHC Plan issued in May 2023. Following the Tribunal decision on Mrs Y’s appeal, the Council issued a new final plan in April 2024, setting out the alternative educational provision it would make for Z in an out of school setting.
So, for the reasons explained above, I have not investigated Mrs Y’s complaint about Z’’s special educational needs provision or alternative educational provision during the period from May 2023 to April 2024.
We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started. I have investigated Mrs Y’s complaint about the delays with the EHC needs assessment process and Z’s educational provision in the period from March 2022 to May 2023
How I considered this complaint
I made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint.
I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.
What I found
What should have happened Education Health and Care Plan A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
Timescales and process for EHC needs assessment The process for carrying out EHC assessments and producing EHC Plans is set out in statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’). This says: where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks; if the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks; and if the council goes on to issue an EHC Plan, 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).
Alternative provision 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.
The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017) The Courts have also found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020]) What happened I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.
Complaint background Z started receiving support from the Council’s Medical Education Service (MES) in 2021. The MES supports children who are unable to attend school for medical reasons. At the time, Z had health issues and been referred to a medical consultant.
Z was discharged from the consultant’s care in November 2021. The Council put a plan in place for Z’s return to school with continuing support from MES.
As at early 2022 Z had not returned to school and had stopped engaging with MES. MES worked with Z to try to re-establish their engagement with the support sessions.
March 2022: Mrs Y’s request for an EHC needs assessment On 8 March, Mrs Y asked the Council to carry out an assessment of Z’s EHC needs. The Council acknowledged the request on 16 May.
On 6 June the Council agreed to carry out the assessment.
The Educational Psychologist’s report was completed in August.
September 2022: Mrs Y’s complaint to the Council Z’s EHC needs assessment should have been completed within 16 weeks of Mrs Y’s request on 8 March – that is by 28 June. It had still not been completed by September. Mrs Y complained to the Council about the delay.
Mrs Y did not receive a response to her complaint. There was also no progress with the EHC assessment.
She contacted the Council again in November and asked for her complaint to be escalated to the next stage of the complaints procedure. In addition to the complaint about the continuing delay with the EHC assessment, Mrs Y said the Council should now be making proper alternative educational provision for Z as the limited MES support was not enough.
March 2023: Council’s complaint response In its response to Mrs Y’s complaint, the Council said: it accepted it had not issued its decision about the EHC assessment or completed an EHC plan within the statutory timescales; there been questions about the educational psychologist’s report. But it accepted it had not communicated with Mrs Y about the delays; and the current medical advice did not suggest Z was unable to attend school.
It offered Mrs Y a remedy payment of £2,650 for the impact of the delay in completing the assessment and issuing the EHC plan, and its lack of communication.
May 2023: Final EHC Plan The Council issued Z’s final EHC Plan on 26 May. The plan named Z’s mainstream school as their educational placement and set out the special educational needs support the school should provide for Z.
The covering letter with the plan notified Mrs Y of her right to appeal to the SEND Tribunal if she disagreed with the placement or special educational needs provision set out in the plan.
Mrs Y was unhappy with the placement and provision in the plan and appealed to the SEND Tribunal.
March 2022 to May 2023: Z’s educational support MES continued to work with Z from March to re-engage them in the support sessions.
In June 2022, the Council decided there was no medical reason Z could not attend school because: the medical consultant had discharged Z; and CAMHS had decided Z did not meet the criteria for Autistic Spectrum Condition, Attention Deficit Hyperactivity Disorder and did not have a mental health condition and had closed its case.
In September 2022, MES told Mrs Y it had now considered the Educational Psychologist’s report completed in August and the further medical evidence submitted by Mrs Y. It agreed to re-start its sessions with Z.
From January 2023, Z’s engagement became a concern again as they had started missing sessions.
September 2023: Council’s final complaint response In its final response to Mrs Y’s complaint the Council said: It accepted Z had missed out on the special educational needs provision set out in the final EHC Plan because of the seven months delay in completing the assessment and issuing the plan; and MES had continued to provide Z with 4 hours a week of educational support during this period. More sessions had been offered but Z had not been able to manage the additional hours.
It offered a remedy payment of £2,800 (@400 a month) for the impact of the SEN provision Z missed during the seven-month delay to May 2023 when the plan was issued. It also offered Mrs Y payments of £300 and £250 for the distress caused by the delay and her time and trouble pursuing the complaint.
Mrs Y was not satisfied with the Council’s offer. She wanted additional compensation for the education Z had missed by being out of school since 2020. She brought her complaint to us.
Current position Following the Tribunal’s decision on Mrs Y’s appeal, the Council issued an amended final EHC plan in April 2024.
This does not name an educational setting for Z. But it makes provision for a bespoke package of 20 hours a week tuition for Z, subject to their ability to engage, together with 4 hours a week of English and Maths tuition.
My view – was there fault by the Council causing injustice?
Failure to complete the EHC assessment within the statutory timescale The Council has accepted, and I agree, it did not complete the EHC needs assessment and issue the final EHC Plan within the statutory timescales.
The final plan should have been issued within 20 weeks of Mrs Y’s request for an assessment on 8 March – so by 26 July. It was not issued until 26 May – a delay of 10 months (not 7 months as the Council has said).
This delay was fault.
Impact of the delay in completing the assessment process Because of this delay, the final EHC plan setting out Z’s SEN provision was issued 10 months later than it should have been. The Council has accepted Z missed out on SEN provision during this period of delay.
The delay caused Mrs Y worry and uncertainty. And she did not have the right to appeal until the final plan was issued.
Communication failures and delays in complaint responses The Council has also accepted, and I agree, it failed to keep Mrs Y informed about the delays with the EHC assessment.
There were also communication failures in its response to her complaint. It took six months (instead of 15 working days to issue the stage one response and 20 working days to issue a stage two response as set out in its complaints procedure) to issue its stage one and two responses to her complaint. It has not explained why it took so long to respond to Mrs Y’s complaints.
These communication failures were fault, causing Mrs Y distress and uncertainty about what was happening with the assessment and the time and trouble of pursuing the Council for a response to her complaint.
Failure to provide Z with alternative provision For the reasons set out in paragraphs 9 to 17, I have not investigated whether the Council failed to make alternative provision for Z in the periods before March 2022 and after May 2023.
I don’t consider there was a failure to make suitable alternative provision for Z in the period from March 2022 to July 2022. The Council had considered the medical information available and decided there was no medical reason Z could not attend school. MES continued to support Z during this period in any event.
The Council then agreed to make alternative provision for Z from September 2022, following the further medical information Mrs Y provided and the educational psychologist’s report. MES considered the new information and put in place a timetable of educational support for Z. Based on the evidence seen, my view is the Council provided Z with the appropriate level of alternative educational provision they were able to manage at that stage.
I have not found fault with the Council on this part of Mrs Y’s complaint.
The Council’s remedy offer I have considered whether the Council’s proposed remedy is in line with the expectations in our guidance on remedies . The Council offered a payment of £2,800 to reflect the impact on Z of the missed SEN provision and £550 to reflect the upset, time and trouble the delay and communication failures caused Mrs Y.
We usually consider a remedy payment of between £900 and £2,400 a term is appropriate to reflect the impact of missed provision on the child or young person.
Here, Z missed out on SEN provision which was to be delivered by their school during the autumn term, spring term and first half of the summer term in the school year from September 2022 – 2.5 terms. I would not recommend a termly payment of more than £1,100 a term (a total of £2,750) for the impact of missed provision on Z.
I consider a payment of £550, to reflect the upset, uncertainty and time and trouble the Council’s delays and communication failures caused Mrs Y, is appropriate as a symbolic amount, based on our guidance.
In my view, the remedies offered by the Council for the injustice caused by its faults are in line with the expectations in our guidance. I do not propose to ask it to make any additional payments.
I have however, asked it to make service improvements.
Agreed action
To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to: apologise to Mrs Y for its delay in completing Z’s EHC needs assessment and issuing their EHC Plan and its communication failures. This apology should be in line with our guidance on Making an effective apology ; and if it has not already done so, pay Mrs Y £2,800, as a remedy for Z’s benefit, to recognise the impact on Z of the missed SEN provision; and £550 to reflect Mrs Y’s distress and time and trouble.
And within three months from the date of our final decision, the Council has agreed to: review its complaint handling procedures to ensure it has a process in place to respond to complaints within the required timescales; and issue a reminder to officers about the statutory timescales for completing EHC needs assessments and EHC Plans and the need to comply with these timescales.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to the above action as a suitable way of remedying this injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman