The Ombudsman's final decision
Summary: Ms J complained the Council caused delay in the Education, Health, and Care Plan process for her son, failed to provide him with an education for four academic terms when he was unable to attend school, and communicated poorly with her. The Council agreed it was at fault and apologised. We found the Council’s apology was not enough. The Council should make payment to acknowledge the injustice its fault caused Ms J and the loss of education X experienced.
The complaint
The complainant, whom I shall refer to as Ms J, complained about the Council’s handling of the Education, Health, and Care (EHC) Plan process for her son (X). She said it had: caused delays in assessing and issuing X’s EHC plan and wrongly consulted schools when it was aware X was unable to attend a school setting; failed to provide X with an education he could access; communicated poorly with her; and caused delays in putting education other than at school and the relevant personal budget in place, when it agreed X should receive this.
Ms J said, as a result, she experienced distress, uncertainty and had a loss of opportunity to exercise her appeal rights, and X had a loss of education.
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) 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) 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)
How I considered this complaint
As part of my investigation, I have: considered Ms J’s complaint and the Council’s responses; discussed the complaint with Ms J and considered the information she provided; and considered the law, guidance, and policy relevant to the complaint.
Ms J and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 found
Relevant law, guidance and policy Education, Health, and Care 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 the 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.
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 EHC Plan is set out in sections which include: Section F: The special educational provision needed by the child or the young person.
Section I: The name and/or type of educational placemen.
Section J: Details of any personal budget required to fund the provision in the EHC Plan.
There is a right of appeal to the Tribunal against disagreements such as: a decision not to carry out an EHC needs assessment or reassessment; and the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.
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”.
The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
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) 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 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.
Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.
Council’s Complaints Policy The Council’s Policy says it operates a two-stage complaints process. It will: acknowledge all complaints within three working days; and respond to stage one and stage two complaints within 10 working days. However, where complaints are more complex it aims to respond within 20 working days. It will inform complainants in circumstances where it cannot meet these timescales, and when its response will be received.
What happened Ms J has a son (X) who has special educational needs which impacts his ability to cope in a school setting. In early 2022 Ms J asked X’s school to help her to get X an EHC Plan as he was struggling to attend his school.
In May 2022 Ms J and X’s school asked the Council to complete an EHC needs assessment for him. A month later the Council told Ms J it would complete the assessment.
In September 2022 X remained on roll with a school, but Ms J told the Council this was unsuitable as it could not meet his complex needs. He only attended school for one day.
The Council shared a draft EHC Plan for X which set out the special educational needs provision and support he should receive.
Ms J asked the Council for more time to comment on the draft EHC Plan. She said the provision in the plan was based on X attending a school, but he was unable to cope in a school setting. She said X should receive education other than at school (EOTAS). She provided her comments four weeks after receiving the draft EHC plan.
The Council told Ms J it needed evidence to show X was unable to cope with a school environment. It also consulted with schools several times in the 2022/2023 academic year.
By March 2023 the Council still had not found a school which could meet X’s needs. It then contacted an Educational Psychologist to discuss what package of support X should receive under EOTAS.
In May 2023 the Council told Ms J it would provide an EOTAS package of support for X. Its caseworker allocated to X’s case left the Council and it allocated a new caseworker.
Ms J says the Council did not inform her about the change of caseworker and she did not hear from the Council for two months.
Ms J’s complaint Ms J complained to the Council about its handling of the Education, Health, and Care Plan process for X. She said it had: caused delays in assessing and issuing X’s EHC Plan and wrongly consulted schools when it was aware X was unable to attend a school setting; failed to provide X with an education he could access; communicated poorly with her; and caused delays in putting EOTAS and the relevant personal budget in place, when it agreed X should receive this.
By September 2023 Ms J had still not received a response to her complaint. She therefore asked the Council to escalate her complaint to stage two of its complaints process.
Two weeks later, the Council provided a response to Ms J’s complaint. It agreed it had caused delays in the EHC Plan process for X, in the consultation process with schools, and in putting EOTAS in place. It apologised for the distress and uncertainty this had caused. It explained: a new officer had been allocated, who was progressing the EOTAS package for X; it would work to complete X’s EHC Plan which would set out his EOTAS provision; and it would review its procedures and processes to meet the statutory timescales for the EHC Plan process and to communicate more timely with families.
Ms J asked the Council to escalate her complaint. She was happy it had agreed it had been at fault and caused delays. However, she said its apology was not enough to remedy the injustice it had caused her and X. She asked the Council to provide a remedy in line with the Ombudsman’s Guidance on Remedies. This was because he had a loss of education of almost four terms at a crucial time of his education.
Ms J also said she had a loss of appeal rights to the SEND Tribunal as X’s EHC Plan had not been finalised. She also questioned why the Council had continued consulting with schools when it was clear he could not cope in a school environment.
The Council provided its final complaint response three weeks later. It upheld her complaint and acknowledged she had asked for a financial remedy, but explained its Complaints Policy does not include the opportunity to provide such a remedy.
In October 2023 Ms J asked the Ombudsman to consider her complaint. She said the Council had upheld her complaint but had failed to provide a remedy appropriate to the loss of education and distress its faults had caused X and her.
At the same time, the Council finalised X’s EHC Plan, which sets out his special educational needs and the provision he should receive through an EOTAS package.
Ms J told us she is not satisfied with the EHC Plan the Council completed for X. However, she is working with the Council to make amendments to the Plan to avoid having to appeal to the SEND Tribunal and the delay this would cause.
Analysis and findings Ms J complained about the Council’s handling of her son’s EHC needs assessment and EHC Plan process since May 2022. Parts of her complaint are therefore late. This is because she brought her concerns to our attention in October 2023, which is more than 12 months after some of the concerns complained about.
However, I am satisfied it is appropriate to exercise my discretion and consider her concerns from May 2022. This is because she has continued to pursue her concerns with the Council, and because she could not complain to us until the Council had failed to adhere to the statutory timescales.
Delay in EHC needs assessment and EHC Plan process The Council agrees it caused delays in the EHC needs assessment and EHC Plan process for X between May 2022, when Ms J requested X’s assessment, until late October 2023, when the Council issued his final EHC Plan.
I agree the Council was at fault. It should have completed the EHC needs assessment process and finalised X’s EHC Plan around the end of September 2022. It took the Council a further 13 months to issue X’s EHC Plan.
I found this caused Ms J distress, uncertainty, and she had a loss of opportunity to exercise her appeal rights to the SEND Tribunal for 13 months.
School consultations and Ms J’s EOTAS request Ms J said the Council wrongly continued to consult with schools in the 2022/2023 academic year when she told the Council he could not cope with a school environment.
The evidence shows the Council consulted with a few schools in autumn 2022 and continued to consult with a few schools each time it consulted. However, the outcome was that no schools could meet X’s needs and offer him a placement.
The Council agreed it had caused delays in the consultation process and to consider her EOTAS request. I agree the Council was at fault. This is because: it should have consulted with schools sooner and its consultations could have included a larger number of potential schools initially; it did not properly consider Ms J’s request for X to receive EOTAS in Autumn 2022, when it was clear he was not attending school, and it was not until March 2023 an educational psychologist considered X’s case; it failed to complete X’s EHC Plan process within the statutory timescales. Based on the evidence available, I am satisfied, on balance, had it completed the process when it should have in Autumn 2022, it would have ceased its consultations and an EOTAS package would have been put in place; and when it agreed to provide X’s with EOTAS in May 2023, it caused further delays in putting this in place.
I found this caused Ms J further distress, uncertainty, and she had to support X as much as she could from September 2022 until October 2023 when the Council issued its final amended EHC Plan for X.
Alternative provision Ms J said the Council failed to provide X with an education he could access when she and X’s school requested his EHC needs assessment in May 2022 and again when he was unable to attend school in September 2022.
The Council agreed it had caused delays in the EHC Plan process for X and upheld her complaint about school consultation and EOTAS delays. However, it did not provide a response to the provision it should have put in place when X was unable to access his education at school from May 2022 to October 2023.
The Council has 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. Ms J and X’s school shared information about his inability to engage and access his education.
Regardless of the Council’s fault and delay in the EHC Plan process, it had a duty to consider and provide X with alternative provision he could access during this time. The evidence shows no attempts were made to put any alternative provision in place for X. This was fault.
I found this caused Ms J and X distress, and X had loss of education. This was from June 2022, when it should have put alternative provision in place until October 2023 when it issued its final EHC Plan for X.
Council’s communication with Ms J and complaints handling The Council agreed it had not communicated and kept Ms J as informed as it should have. This included when it changed its allocated worker and failed to inform her about the change.
Based on the evidence available, I agree the Council’s communication was poor and it failed to keep Ms J informed about progress in X’s case and about some of its delays. This was fault, which caused Ms J further distress and uncertainty.
Also, Ms J complained to the Council in July 2023. She had to chase the Council for a response to her stage one complaint, and it took the Council two months to provide its complaint response.
I found this was fault by the Council. This is because it did not respond within the timescales set out in its Complaints Policy, nor did it inform her of any delays in doing so. I found this caused Ms J some further distress and uncertainty.
In addition, the Council’s complaint response to Ms J said it had not offered a remedy for the injustice it caused her and X. It said this was because its Policy did not include an opportunity for it to provide a financial remedy.
While this may be the Council’s policy, we encourage councils to consider providing appropriate remedies in line with our published Guidance on Remedies. This is in circumstances where it has found fault which caused a complainant an injustice.
Service improvements recommendations We have recently made service improvement recommendations on a similar case to the Council, which it has not had the opportunity to fully implement as yet. I have therefore not made the same recommendations on this case.
Agreed action
To remedy the injustice the Council caused to Ms J and X, the Council should, within one month of the final decision: pay Ms J £750 to acknowledge the distress, uncertainty, and delay to her appeal rights the Council’s faults caused her; pay Ms J £100 for the unnecessary time and trouble she had to chase the Council to get a response to her complaint and for it to consider a suitable remedy; and pay Ms J £9,600, to use as she sees fit for X’s benefit, to acknowledge the loss of education X experienced between June 2022 to October 2023 when he did not receive an education he could access and his EHC Plan was incomplete.
In total the Council should pay Ms J £10,450.
Within three months of the final decision the Council should also: remind its complaints handling staff: of the Council’s Complaints Policy timescales, and if its complaint responses are delayed, to inform complainants of the reasons and when a response will be shared; and to consider what redress is appropriate in circumstances where the Council agrees its fault caused an injustice to a complainant. This may be an apology and may include a financial remedy. We encourage the Council to consider the Ombudsman’s Guidance on Remedies as part of this process.
The Council should provide us with evidence it has complied with the above actions.
Final decision
There was fault which caused Ms J and X an injustice. The Council has agreed with my recommendations, it is on this basis I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman