The Ombudsman's final decision:
Summary: The Council was at fault for taking a year longer to issue Y’s education, health and care plan than statutory guidance allows. Y suffered no significant injustice from the delay as he received education and special educational needs provision before the plan was issued, and the Council has now named Mrs X’s preferred school on the plan. However, Mrs X went to a significant amount of time a trouble to pursue the matter, and she is now unable to work for a term because Y’s school start date has been delayed until September 2018 and she needs to support him at home. The Council has agreed to apologise and make a payment of £1000 to Mrs X to recognise her injustice.
- The complainant, whom I refer to as Mrs X, complains about how the Council took to finalise her son’s Education, Health and Care (EHC) plan. I refer to her son as Y.
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)
- If we are satisfied with a council’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.
How I considered this complaint
- I spoke to Mrs X about her complaint, and considered information I received from Mrs X and the Council.
- I wrote to Mrs X and the Council with my draft decision and considered their comments.
What I found
- On 28 November 2016 Mrs X asked the Council to assess Y for an EHC plan. It agreed to do so on 28 December.
- The Council issued a draft EHC plan on 8 March 2017. The plan did not have a placement or type of placement named. It did, however, set out that Y needed a range of special educational needs (SEN) provision.
- Mrs X responded on 20 March and asked for a specific school – a specialist support centre (SSC) – to be named in the final plan. On 29 March the Council consulted the SSC requested by Mrs X.
- On 13 April the SSC said it could not meet Y’s needs, and said he would not be suitable for an SSC at all.
- In June Y’s case was discussed at the Council’s SSC placement panel, which decided an SSC would not be suitable for him. The Council told Mrs X this on 12 June, and on 14 June consulted a mainstream primary school.
- On 20 June the Council asked an SSC co-ordinator to assess Y in school to find out whether he would be suitable for an SSC. On the same day it issued a second draft EHC plan. This second draft also set out SEN provision, but also did not name a placement or type of placement.
- On 23 June the mainstream primary school the Council had consulted said it could not meet Y’s needs.
- Mrs X responded to the second draft EHC plan and suggested amendments. The Council told her on 4 July that most of amendments should be acceptable, but that it would wait until the outcome of the SSC assessment before proceeding.
- On 19 July the SSC co-ordinator said, following observation of Y at nursey, that an SSC may be suitable. On the same day the Council offered to meet Mrs X to finalise Y’s EHC plan. She responded with her availability.
- On 15 August, and having had no further contact from the Council, Mrs X submitted a formal complaint.
- On 12 September the Council told Mrs X that it had contacted local SSCs to find out if spaces were available.
- On 10 October the Council offered Y a place at an SSC which was not Mrs X’s preference. Mrs X refused the offer.
- On 20 October the Council offered Y a place at Mrs X’s preferred SSC, which she accepted.
- On 6 November Mrs X met with the SSC, which would not agree a start date or transition plan because it felt Y would be at risk from other pupils there. It said it would wait until it had found suitable placements for the other children. It said it had told the Council this before.
- On 21 November Mrs X asked the Council to apply to another school for Y, which she had visited and liked. The Council consulted this school on 29 November.
- On 24 January 2018 Mrs X’s preferred school conducted an assessment of Y. In early March the Council agreed to name this school (for Y to start in September 2018) and it issued Y’s final EHC plan on 7 March.
- As Y is now five years old and should have started school in April 2018, the Council has agreed amendments to his EHC plan to recognise that he must receive a suitable education (including SEN provision) until September. It has issued the amended EHC plan, and Mrs X has agreed to the amendments.
2015 SEND code of practice
- This code provides statutory guidance on duties, policies and procedures relating to Part 3 of the Children and Families Act 2014 and associated regulations.
- Paragraph 9.40 of the code says the whole process of issuing an EHC plan, from the point when an assessment is requested until the final EHC plan is issued, must take no more than 20 weeks.
- Paragraph 9.42 sets out exceptions to the 20-week timescale:
- The child misses appointments with agencies which have been asked to provide information for the EHC plan;
- The child is away from the area for a period of at least four weeks;
- Exceptional personal circumstances affect the child or the parent;
- The educational institution is closed for at least four weeks, which may delay its submission of information.
- If a council agrees to issue an EHC plan, it has 20 weeks to do so, starting from the date it received the request. The Council received Mrs X’s request on 28 November 2016, and none of the exceptions set out in the SEND code applied to Y, so the Council should have issued the final plan by 17 April 2017.
- The Council issued Y’s final EHC plan on 7 March 2018, although the plan did not set out what provision Y would receive in the 2018 summer term (as he will not be starting at Mrs X’s preferred school until September 2018). After it issued the plan, the Council met with Mrs X and agreed a plan for Y’s education in the summer term, and it has since issued an amended EHC plan to reflect this.
- This means that it took the Council a year longer to issue Y’s EHC plan than it should have taken. Although I acknowledge that the Council had considerable difficulty finding a placement for Y, this was a significant delay, which was fault by the Council.
- The Council had several opportunities to issue a final EHC plan over the course of 2017. It is clear that it made extensive efforts to ensure that it named Mrs X’s preferred placement, but there were periods of inaction, several months of confusion about the suitability or availability of an SSC placement, and – more recently – a period of around three months between consulting Mrs X’s preferred school and agreeing to name it on the EHC plan.
- I have considered what level of injustice Y has experienced because of this delay. I acknowledge that the delay in issuing the EHC plan (and naming a school) did not significantly affected Y’s SEN or educational provision, as he remained at nursery (which made SEN provision despite there being no EHC plan in place), and because of his age he was not required to start school until April 2018 anyway. Although he is now not starting school until September 2018, the Council has put a plan in place to ensure he receives a suitable education until then.
- I have also considered what injustice the delay has caused to Mrs X. She has gone to a substantial amount of time and trouble to ensure Y got the support she felt he needed, and I do not doubt that the process has been stressful.
- It is also clear that, because of the delay, Y is not yet in school, so Mrs X needs to stay at home to look after him. This will have an impact on her ability to work, and she says she has had to delay starting a job until Y returns to school.
- The Council should make a payment to Mrs X to recognise the inconvenience this will cause, as well as the distress the delay has caused her and the time and trouble she has taken to pursue the matter.
- The Council has agreed to write to Mrs X and apologise for taking a year too long to issue Y’s EHC plan.
- The Council has agreed to make a payment of £1000 to Mrs X to recognise the inconvenience and distress the delay has caused her, as well as the time and trouble she has taken to pursue the matter.
- These actions should be completed within six weeks of the date of this decision statement.
- The Council was at fault for taking a year longer to issue Y’s EHC plan than statutory guidance allows. Y suffered no significant injustice from the delay as he received education and SEN provision before the plan was issued, and the Council has now named Mrs X’s preferred school on the plan. However, Mrs X went to a significant amount of time a trouble to pursue the matter, and she is now unable to work for a term because Y’s school start date has been delayed until September 2018 and she needs to support him at home. The agreed actions remedy her injustice.
Investigator's decision on behalf of the Ombudsman