Summary: There was unacceptable delay of over fifteen months in the Council issuing an education, health and care plan. This resulted in financial loss to the parent and loss of specialist support to the young person at a crucial stage of education. Recommendations for an apology, financial payment and service improvements are made

The complaint

1. Ms X complains the Council delayed issuing her daughter’s Education, Health and Care (EHC) plan by fifteen months.

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The Ombudsman’s role and powers

2. 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)
3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
4. 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)

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How I considered this complaint

5. I have considered the Council’s response to the complaint and spoken to Ms X by telephone.
6. I have considered relevant law and guidance:
• The Children and Families Act 2014
• The Special Educational Needs and Disability Code of Practice 2015 (‘The Code’.
7. I have considered the Ombudsman’s Guidance on Remedies.
8. I have written to Ms X and the Council with my draft decision and considered their comments.
9. 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.

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What I found

Chronology of events

10. Ms X’s daughter is currently in year 11 of an independent school which Ms X is funding privately. Ms X’s daughter was to sit GCSE’s this year.
11. On 17 July 2018 Ms X requested the Council carry out an education, health and care assessment under section 36 of the Children and Families Act. The Council agreed to do so and after gathering advice agreed to issue an EHC plan.
12. The whole process of issuing an EHC plan from request to final plan should not exceed twenty weeks. This means the Plan was due on or about 30 November 2018.
13. In March 2019 Ms X had still not received the draft plan and complained to the Council about:
• Delay in issuing the draft plan
• Lack of communication with Council staff after a team around the child meeting
• A change of case manager.
14. The Council upheld the complaint about delay and poor communication. It said the change in the case manager was unavoidable as to keep the same officer would lead to further delay due to a reduction in the officer’s working hours.
15. The Council told Ms X in March 2019 a draft plan had been prepared and would be issued as soon as it had been checked. The Council said it would backdate any agreed funding to the point the EHC plan should have been finalised (twenty weeks)
16. In May 2019 Ms X says the Council told her changes to the draft had been incorporated and the draft would now be shared with her daughter’s school. This did not happen.
17. Ms X chased the Council in September 2019 and the Council told her the matter would be chased up urgently.
18. Ms X had still not received a final plan at the time of this investigation.
19. Ms X has been paying the costs of the independent school. Mrs X says she had expected the final plan to agree this school and the Council to fund it. The Council has not disagreed with this view.
20. Ms X says her daughter needed much more support than she has received. Her daughter has struggled with self-study and unstructured time. Ms X believes the Plan would have included additional funding for adult support at these times. Ms X expects her daughter to underperform in her GCSE’s because of the lack of support the EHC plan would have provided. Ms X says that it may be necessary for her daughter to re-sit GCSE’s.
21. Ms X says a consequence of the Council’s delay is that there has been no transitioning planning for what her daughter will do after Year 11.
22. Ms X says the delay has caused extra stress and worry for her and her daughter and extra time and trouble chasing the Council.

Analysis

Fault

23. The Council admitted delay and poor communication in March 2019. It set out steps it would put in place to put things right but continued to repeat the same fault.
24. In March 2020, when I issued a draft decision, the EHC plan was over fifteen months late. This is unacceptable delay. The Council has agreed this is fault.
25. If the EHC plan had been issued in November 2018 it would have been reviewed no later than November 2019 and this review would have included transition planning post-GCSE. Ms X’s daughter has missed out on transition support at a crucial time. This is fault.
26. In its response to my draft decision the Council told me it has recently undergone a joint OFSTED and Care Quality Commission (CQC) inspection of its provision for special educational needs and disabilities (SEND). This confirmed problems with assessment timeliness in other cases. The Council says it has implemented measures to address this including carrying out an audit to identify delayed cases and creating a dedicated backlog team to tackle these. The Council says it is subject to a written statement of action by OFSTED / CQC and as part of this process will have four monthly meetings with NHS and Department of Education advisers to track and monitor performance.

Injustice

27. The Council’s unacceptable delay and failure to keep the promises it made during the complaint process meant:
• Ms X had to fund her child’s education for an extended period when she could have expected the Council to fund this from no later than 30 November 2018. This has caused financial loss to Ms X.
• While Ms X’s daughter has not missed out on education, as she has been able to attend a suitable school, she has missed out on the special educational provision the EHC plan would have provided. This may have long term consequences if it means Ms X’s daughter does not perform as well in her GCSE’s as she might otherwise have done. As I have not seen the final EHC plan, it is premature for the Ombudsman to assess the impact of provision that has been lost.
• The Council may be able to mitigate the impact by providing additional support in future years or funding the young person to re-sit exams. Once the final plan has been issued Ms X will have a right of appeal to Tribunal if she considers more support is required, which we would expect her to use. The Tribunal is the appropriate forum to resolve any disagreements about the content of an EHC plan.
• Ms X’s daughter has missed out on transition work to prepare for the next stage of her education and adult life that would have happened via annual reviews of the Plan had it been issued in 2018.
• Ms X has been put to unnecessary time and trouble chasing the Council over fifteen months.

Agreed action

28. The Council accepted the Ombudsman’s recommendations, however since issuing the draft decision, public exams have, as a result of the coronavirus, been cancelled. I have revised my recommendations to take account of the new circumstances that pupils, schools and councils now find themselves in.
29. The Council will issue the final plan as soon as possible so as to not further delay a right of appeal.
30. As soon as practicable, the Council will discuss with Ms X, her daughter, and the school whether additional support, for example tuition, is required to mitigate the past loss of support. This may include discussion about support to sit the proposed exams after GCSE grades are awarded or resitting exams in 2021.
31. The Council will refund Ms X the school fees from 30 November 2018 until the end of the current school year (2019/20) as soon as it is practicable for the Council to do so.
32. The Council will apologise to Ms X and her daughter for the fault and injustice caused.
33. The Council will consider the Ombudsman’s guidance on remedies and offer Ms X’s daughter an appropriate sum for the impact of the loss of special educational support resulting from the delay in issuing a final Plan and for the failure to support her in transition planning. If Ms X and the Council cannot agree a remedy Ms X may bring this matter back to the Ombudsman to consider further.
34. The Council will pay Ms X £1000 to acknowledge her and her daughter’s distress, time and trouble.
35. The EHC plan will immediately need to be reviewed to take account of post-GCSE plans. The Council will need to discuss post-16 transition planning with Ms X and daughter and should ensure that any future decisions or amendments to the Plan are made quickly so that the next stage of education, employment or training is not adversely affected.
36. Given a SEND written statement of action has been issued and the Council is working with the Department of Education there is no need for me to make any further recommendations about service improvement.

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Final decision

37. I have completed my investigation. There was unacceptable delay of over fifteen months in the Council issuing an education, health and care plan. This resulted in financial loss to the parent and loss of specialist support to the young person at a crucial stage of education. Recommendations for an apology, financial payment and service improvements are made.

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Investigator's decision on behalf of the Ombudsman