The Ombudsman's final decision
Summary: The Council was at fault because it delayed issuing an education, health and care plan, and because it did not consult with any potential school placements until after it had issued the final version of the plan. However, there is no reason to believe this made any material difference to the situation and so we do not consider it caused an injustice. There was no fault in the way the Council sought to discharge its duty to arrange alternative provision. We have therefore completed our investigation.
The complaint
I will refer to the complainant as Ms V.
Ms V complains the Council has not identified a suitable school placement, or arranged suitable alternative provision, for her son, W, since he stopped attending school in February 2022. She also complains the Council delayed issuing his education, health and care (EHC) plan and that she has had been generally poor communication from Council officers on these matters.
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. 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) 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended) 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 statement.
How I considered this complaint
I reviewed Ms V’s correspondence with the Council and W’s EHC plan, and sought additional information from the Council about its consultations with schools and the arrangements it has made for alternative provision.
I also shared a draft copy of this decision with each party for their comments.
What I found
W has a learning and developmental disability. He is sometimes violent towards other people, and stopped attending school in February 2022 after one such incident, although he remained on roll there.
Shortly after this, Ms V contacted the Council to ask it to carry out an education, health and care needs assessment for W, and in April, the Council agreed to do so.
In February 2023 Ms V submitted a stage 1 complaint to the Council. She complained: the Council had not arranged suitable educational provision for under its s19 duty since he had stopped attending school; it had been 48 weeks since she had requested the EHC needs assessment, but the Council had not issued W’s EHC plan; the draft plans, issued in November 2022 and January 2023, had contained errors and were missing some information; and the Council had not yet consulted with schools over a possible new placement for W.
Ms V said these failures had had a negative impact on W’s mental and physical health and was causing distress to her family.
The Council responded in April. It acknowledged and apologised for the delay in issuing W’s EHC plan, noting it should have completed this by July 2022. It noted there had been a particular delay in processing the professional advice it had received as part of the assessment.
However, the Council also noted Ms V had requested the Council obtain an educational psychologist (EP) report, and explained there was a nationwide shortage of educational psychologists, which had contributed to the delay. The Council said it was working to implement strategies to improve its timeliness in the face of this challenge.
The Council explained that the purpose of issuing a draft EHC plan was to allow feedback and consider whether to make amendments. It said the case officer had made the legally permissible amendments, and had also, at Ms V’s request, investigated the possibility of including a speech and language therapy (SALT) report, but the SALT team had refused permission for this.
The case officer had also experienced delays in obtaining information necessary to issue the second draft plan in January, and a subsequent third plan in March.
The Council noted W was not attending school because he presented a risk to himself and to others. It said it had arranged tuition for W through two different providers, but both placements had broken down. However, it noted W had recently said he felt more positive about engaging with education and returning to school. The Council said the case officer would discuss possible placements with Ms V.
In April, the Council issued W’s EHC plan. It did not name a school placement for him, but said he should attend a specialist school.
In July Ms V submitted a stage 2 complaint. She said she felt some of her points of complaint had been misunderstood, or that there had been an inadequate response, that “individuals were not held accountable” for failing to help, and that there had been avoidable delays in producing W’s EHC plan. Ms V also said W’s school had failed to support him.
The remainder of Ms V’s stage 2 complaint concerned the Council’s social care involvement with the family, which does not form part of this complaint to the Ombudsman.
The Council responded in August. It noted it had issued W’s EHC plan in April, but had only named a type of school because it had not received any positive consultation responses. It also noted Ms V had a preference for one particular school, but this school had provided a negative response.
The Council said an alternative education provider had offered a placement for W to begin in September, to remain in place until a suitable school placement became available, but that Ms V was reluctant to accept this. The Council also said a risk assessment had now been completed, which would enable to it consult again with new information.
In October, Ms V approached the Ombudsman.
Legislative background EHC plans 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 council can do this.
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.
If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
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 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.
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); Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
Alternative provision 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.
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)) Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
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 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) The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
Analysis The law says a person should approach us within 12 months of becoming aware of the issue they wish to complain about. This is called the ‘permitted period’.
In this case, Ms V complains about matters which began in February 2022, when W stopped attending school. However, she did not complain to us until October 2023, meaning anything which happened before October 2022 is late under this rule.
The law does permit us some flexibility in the application of this rule, but in order to accept a late complaint for investigation, we must first be satisfied there are good reasons the complainant did not approach us sooner. We must also be satisfied it is still possible to conduct a meaningful and robust investigation.
The main issues here – the delay in the producing the EHC plan, and W’s absence from education – were both evident significantly before Ms V’s stage 1 complaint to the Council in February 2023. There is no obvious reason for her to have waited until this point before making a complaint, and I note also she did not approach us for approximately two months after receiving the Council’s stage 2 response.
I am not persuaded, therefore, there are good reasons for the delay in Ms V’s complaint to the Ombudsman, and for this reason I will not investigate matters which occurred before October 2022, although I will refer to them for context where necessary.
The law gives a council a maximum of 20 weeks to produce a finalised EHC plan, beginning with the date it receives a request for an assessment.
Ms V requested an assessment for W on 6 March 2022. The Council, having accepted this request, issued the final EHC plan on 28 April 2023, approximately 60 weeks later. This was very significantly late.
I am conscious the Council acknowledged this in its stage 1 response, albeit at that point the EHC plan was still outstanding. It explained that a shortage of EPs, along with an increase in the number of requests for assessments, contributed to the delay, although it also accepted that some of the delay was “avoidable”.
The shortage of EPs is a nationwide problem and we appreciate it is not something which can easily be resolved. Either way, I must find fault by the Council for the delay in issuing W’s EHC plan.
However, it is not straightforward to determine what injustice this caused W, for reasons I will explain presently.
A significant part of Ms V’s complaint is that W has not been attending school since February 2022, now over two years ago. She also complains the Council failed to consult with possible school placements as part of the EHC plan process.
The Council has provided me with a list of the school consultations it has undertaken for W. The earliest of these is dated May 2023, which was after the Council issued the final EHC plan. I have no indication why the Council did not consult during the drafting process, which is what we would normally expect, but again I consider this to be fault.
Separately, I also note the Council’s stage 2 response said it had issued the EHC plan ‘by type’ (meaning it named a type of school, rather than a specific establishment) because it had not received any positive consultation responses. But this is obviously incorrect, because there had been no consultation yet when the Council issued the plan.
I must note here that Ms V had the right of appeal to the SEND Tribunal against the Council’s decision to issue his EHC plan without naming a placement. The law says we should not investigate complaints, about matters where the complainant had a right of appeal to a court or tribunal, and it was reasonable to expect them to use that right.
Ms V says she was unaware she had any right of appeal because the Council did not tell her about it. However, I have reviewed a copy of the covering letter the Council sent when it issued the EHC plan in April 2023, and it clearly explains the right of appeal, how to use, and the deadline for doing so. I cannot accept, therefore, that the Council did not inform her of the right of appeal, and so this does not give me grounds to find it was unreasonable to expect her to use it.
Even putting this to one side though, I cannot overlook the fact that, since issuing the plan, the Council has carried out a wide consultation process. It has sent out 22 consultations to 16 different schools. Of those, 2 remain outstanding; on 5 occasions the school responded to say it had no space; and on the remaining 15, the school responded to say it was not suitable for W’s needs.
Even accepting the Council should have consulted at draft stage, therefore, it is difficult to see what difference this can really have made. It appears very unlikely the Council would have secured a placement for W, even if it had consulted earlier in the process. I do not consider the fact he remains without a placement to be the result of this fault.
Ms V also complains the Council’s initial draft EHC plans included errors and omissions. However, as the Council has explained, the entire purpose of issuing a draft version of the plan was to allow Ms V the opportunity to comment on and question any detail she disagreed with. This is a normal part of the process and not fault.
And, again, if Ms V disagreed with any of the content of the final EHC plan, she then had a right of appeal to the SEND Tribunal about this, and so this is not something I can investigate.
To summarise these points, therefore: the Council was at fault because it delayed issuing W’s EHC plan; it was also at fault because it did not consult with schools during the drafting process; Ms V had the right to appeal its decision not to name a placement in the final plan and so I cannot investigate this; the Council has now consulted widely with potential school placements but without success, and I do not consider the fact W remains out of school to be the result of fault by the Council; and issuing a draft version of the plan to allow Ms V to suggest amendments is a normal part of the process and not fault.
Separately, Ms V complains the Council has not made suitable arrangements for W to receive alternative educational provision, under its s19 duty, during the period he has not been attending school.
The Council has told me Ms V has made another, more recent complaint, covering events from the point it issued W’s EHC plan in April 2023, including the arrangements for alternative provision. It has partially upheld this complaint and offered Ms V a financial remedy to reflect missed alternative provision during this period.
As this period forms part of a new complaint, I will therefore restrict my investigation about alternative provision to the earlier period, between October 2022 and April 2023.
The Council has given me a chronology describing events during this time. In October 2022, a provider agreed to arrange tuition for W, with the aim of building this up to 10 hours per week. Because of a risk assessment, this tuition was to be online only. The Council agreed to this offer in November, but a couple of weeks later the provider reported that W had refused to engage with it, and that both he and Ms V did not wish for it to continue.
Later in November the Council consulted with two other providers, and arranged for Ms V and W to visit them, but she cancelled this visit in December due to family illness. In January, Ms V asked the Council to arrange for her and an officer to visit the providers without W, as he had been struggling. The Council arranged this visit but unfortunately the date coincided with a family funeral, and so it was postponed for a week.
After the visit Ms V told the Council she did not think either provider was suitable for W. She asked that they now explore a specialist SEN provision for W, which a mind to it being named as his placement when his EHC plan was issued.
The Council’s duty under s19 is to “make arrangements” for alternative provision for a child not attending school under the stated circumstances. It is clear the Council accepted its s19 duty applied here, but that does not mean I can find fault simply because its efforts to arrange alternative provision were unsuccessful.
For the relatively limited period I am looking at, the Council made arrangements with three different providers, but in each case this failed, either because W declined to engage with the provision or because Ms V did not feel it was suitable.
I should stress, at this point, that I do not seek to question Ms V’s decision here. She is entitled to decide what is best for W, and I appreciate she would wish to avoid putting him in a situation where he might continue to struggle to engage or to settle.
The fact remains, however, there are limited alternative providers available to the Council, and I equally cannot find fault simply because Ms V did not consider what was available to be suitable for W. Again, the Council’s duty here is make arrangements – that the arrangements may have failed does not mean it has not discharged this duty. This is unfortunate but it is not fault.
Ms V has also complained about generally poor communication with Council officers throughout these events. However, this issue did not form part of either her stage 1 or 2 complaints to the Council, and I am therefore unable to investigate it here.
Conclusions
The Council was at fault because of the very delayed production of W’s EHC plan, and because it did not consult with any potential schools for W until after it issued the plan.
However, I am unable to identify any meaningful injustice from this. I cannot overlook that, despite the delay in approaching schools, the Council has consulted very widely in the year since the EHC plan was finalised, but without any success (and I should note the Council has told me it has carried out yet more consultation since the events described here, but still has had no positive response). There is, therefore, no reason at all to believe W’s situation would be substantively different had there been no delay.
I appreciate how difficult this situation is for Ms V. She has explained she is a single parent and works full time, and that it is extremely stressful and frustrating attempting to balance her commitments with supervising and caring for W while he remains at home. I do not seek, in any way, to dismiss or minimise this.
But, again, the fact remains the Council can only work with the resources it has available, and the schools in question are entitled to decide they cannot meet W’s needs.
I should note the Council has the power to name a school on W’s EHC plan and require it to accept him, even if it has declined to offer him a place during consultation. I cannot recommend the Council does this; but in the general sense, we would expect the Council to remain conscious it has this power and, if it is unable to gain agreement from any school, consider carefully whether it is appropriate to use it.
My investigation of the alternative provision element of Ms V’s complaint is limited to the period October 2022 – April 2023, due to the restrictions on our jurisdiction and the fact Ms V has since made another complaint to the Council. Within that limited period though, I am satisfied the Council has shown how it sought to discharge its s19 duty, and that the arrangements it offered or proposed were unsuccessful because W and Ms V did not find them suitable, not because of council fault.
Final decision
I have completed my investigation with a finding of fault which did not cause injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman