The Ombudsman's final decision
Summary: Ms X complained the Council failed to produce her child’s Education Health and Care Plan in the statutory timescales. Ms X also complained the Council failed to provide her child with full-time education since January 2023. We found fault with the Council delaying production of Ms X’s child’s Education Health and Care Plan. We did not find fault with the Council failing to provide suitable education for Ms X’s child. The Council agreed to provide an apology to Ms X and pay her £700 for the frustration and uncertainty caused by the delays in production of her child’s EHC Plan.
The complaint
Ms X complained the Council failed to produce her child’s Education Health and Care Plan in the statutory timescales.
Ms X also complained her child has been without full-time education, with attendance below 50%, since January 2023 because of the lack of support for her child’s needs.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended) The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6) 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 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.
What I have and have not investigated I have investigated Ms X’s complaint about the delays in production of the Education Health and Care Plan. I have also investigated any failure to provide full-time education from January 2023 until production of the Final Education Health and Care Plan.
I have not investigated any content of the Education and Health Care Plan. The content of an Education Health and Care Plan is appealable to the SEND Tribunal and outside the jurisdiction of the Ombudsman. Ms X has exercised her appeal rights over the content of the Education Health and Care Plan to the tribunal.
I have not investigated the Councils decision not to obtain a Speech and Language Therapy Report for the Education Health and Care Plan. I have also not investigated the suitability of the Educational Psychologist report the Council relied on when producing the Education Health and Care Plan. This is because the content of the Education Health and Care Plan is informed by the reports obtained. Since Ms X has appealed to the tribunal about the content of the Education Health and Care Plan, any complaint about the suitability of the reports, or decisions about what optional reports to obtain, are a matter for the tribunal.
The end point for the Ombudsman’s investigation is 18 December 2023. This is the date the Council produced the final Education Health and Care Plan for Ms X’s child. Within the final Education Health and Care Plan the Council named an educational placement in Section I that it considered suitable for Ms X’s child’s needs. Should Ms X have concerns about this educational placement, the SEND Tribunal has advised she can appeal this and name her preferred placement. If Ms X has concerns about the Council’s failure to integrate her child into this educational placement, this would be the subject of a new complaint.
How I considered this complaint
I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Both Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.
What I found
Rules and regulations EHC Plans A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
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 the following: 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.
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.
If the Council declines to carry out an assessment for an EHC Plan a person may appeal to the SEND Tribunal. If the Council concedes this appeal, and agrees to issue an EHC Plan following assessment, it must produce the EHC Plan within 14 weeks of conceding the appeal.
As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.
Rules and regulations Providing education 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.
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)) 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) Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.
What happened On 13 October 2022, Ms X applied to the Council for an EHC Needs Assessment for her child, who I shall refer to as Y. Ms X confirmed Y was attending her school on a flexi four-day basis.
On 1 December 2022, the Council declined to assess Y for an EHC Plan. The Council told Ms X about its decision. Ms X appealed the Council’s decision to the SEND Tribunal.
The Council conceded the appeal to the SEND Tribunal on 10 February 2023 and agreed to carry out an EHC Needs Assessment of Y. As part of the EHC Needs Assessment the Council sought input from Y’s school, healthcare professionals, an Educational Psychologist and social care professionals. The Council decided it did not need further advice for Y’s EHC Needs Assessment.
On 23 June 2023, Ms X complained to the Council about its failure to produce Y’s EHC Plan in the statutory timescales.
The Council issued its Stage 1 complaint response on 6 July 2023. The Council upheld Ms X’s complaint and apologised for the delays in producing Y’s EHC Plan. The Council said a national shortage of Educational Psychologists had caused the delays in producing Y’s EHC Plan.
On 14 August 2023, Ms X sought escalation of her complaint to Stage 2 of the Council’s complaints procedure. Ms X reiterated her concerns about the Council’s failure to adhere to the statutory timescales.
The Council issued a draft EHC Plan for Y on 19 October 2023. Ms X provided comments on the draft EHC Plan.
On 26 October 2023, the Council issued the final complaint response to Ms X’s complaint. The Council accepted it had delayed in producing the final EHC Plan for Y and apologised for the delays. The Council said it would look to produce the final EHC Plan soon.
The Council produced Y’s final EHC Plan on 18 December 2023. The Council named Ms X’s chosen school in Section I of the EHC Plan and referenced the Occupational Therapist report that Ms X commissioned.
Ms X appealed the EHC Plan to the SEND Tribunal in March 2024. Within the appeal, Ms X said that Y’s attendance at school was 40%. The SEND Tribunal accepted the appeal for Section B and Section F.
Analysis EHC Plan Delays The Council had six weeks from Ms X’s application for an EHC Plan to decide whether to assess Y for an EHC Plan. Since Ms X made her application on 13 October 2022, the Council had until 24 November 2022 to decide whether to assess Y. The Council decided not to assess Y on 1 December 2022. This was one week outside the statutory timescales and was fault.
When the Council decided not to assess Y for an EHC Plan it told Ms X accordingly. The Council was entitled to decide not to assess Y and I cannot question this decision. The Council did not need to take any action from 1 December 2022 until it conceded the appeal to the SEND Tribunal on 10 February 2023. The Council was not bound by any timescales and I do not find fault with the Council’s actions.
If a council concedes an appeal to the SEND Tribunal, and agrees to assess a child for an EHC Plan, it has 14 weeks to produce the final EHC Plan from the date it concedes the appeal. This 14 week timescale is only applicable when a council decides, following assessment, that it will produce an EHC Plan. Since the Council decided to produce an EHC Plan for Y following its assessment, the Council had until 19 May 2023 to produce the final EHC Plan. The Council only produced this final EHC Plan on 18 December 2023. The Council took 14 months from request to produce the final EHC Plan which included a delay of seven months outside the statutory timescales and is fault.
The Council has confirmed the reason for the delay in producing the final EHC Plan for Y was because of delays with getting input from an Education Psychologist.
While the delays with the Educational Psychologist was not the sole reason for delay in this matter, where the delay in production of an EHC Plan is due to a council’s failure to secure Educational Psychologist advice, we would recommend a payment of £100 for each month’s delay outside the statutory timescales. We recommend the Council pays Ms X £700 for the seven-month delay in producing Y’s EHC Plan outside the statutory timescale. This is to address the uncertainty and distress caused through the Council’s delays.
EHC Plan input As part of Y’s EHC Needs Assessment the Council got input from the relevant professionals required in line with the regulations. Since the Council consulted the professionals required of it, I cannot find fault with the Council for this.
The Council decided that it did not need to consult any other professionals for Y's EHC Plan. The Council’s rationale for this was that it considered it could complete a thorough EHC Plan without the need for any additional professional input. This was a merits decision the Council was entitled to make and I would not find fault with the Council.
Ms X decided to get extra reports to support Y’s EHC Needs Assessment. The Council did not consider it needed these reports but considered Ms X’s Occupational Therapist report on her request. Since it was Ms X’s choice to get these extra reports, it was also her choice to incur the cost of these reports. Since the Council decided it would not get or rely on these reports, if not for Ms X providing them, I cannot justify reimbursement for the cost of any reports Ms X sourced.
Access to education We cannot consider the role of the school as schools are not within our jurisdiction. This investigation is limited to consideration of the role of the Council.
The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. It is not the role of the Ombudsman to investigate Y’s school and what educational provision it put in place before the Council became responsible.
The evidence shows that Y’s school had agreed an educational programme for Y on a four-day basis. Y’s school was providing support for Y out of its normal budget and did not ask the Council for additional input to support Y. The Council was aware of Y’s educational programme and this was designed to meet Y’s needs.
The EHC Needs Assessment application submitted in October 2022 outlined that Y was being flexi-schooled on a four-day basis. This did not state that Y was absent from school but, rather, that this flexi-schooling agreement was in place to meet Y’s needs. The EHC Plan assessments did not highlight that Y was failing to attend school. Ms X’s complaints also did not raise this as a concern and instead centred on delays in production of the EHC Plan.
Neither Ms X nor the school have contacted the Council to advise the school cannot meet Y’s needs. Since neither Ms X nor Y’s school told the Council that Y was absent from school, I cannot find it at fault for failing to act to provide education for Y. As far as the Council would have been aware, Y was receiving a bespoke educational package that was suitable to meet Y’s needs.
When the Council produced the final EHC Plan for Y it named Ms X’s chosen school as the educational placement believing this to be a suitable school to meet Y’s needs. The Council has named Ms X’s chosen school for Y and it would be Ms X’s responsibility to ensure Y attends this educational setting. Should Y be unable to attend this school, Ms X would need to contact the Council directly about this first. Ms X can also appeal Section I of the EHC Plan to the SEND Tribunal if she considers this placement unsuitable.
Agreed action
Within one month of the Ombudsman’s final decision the Council should: Apologise to Ms X and pay her £700 for the avoidable distress and uncertainty caused through the seven-month delay outside the statutory timescales in producing her child’s EHC Plan.
The Council should provide us with evidence it has complied with the above actions.
Final decision
There was fault by the Council as the Council has agreed to my recommendation, I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman