Summary: Ms B complains the Council failed to issue an Education, Health and Care Plan in a timely way for her son, C. She says when she made complaints, these were not dealt with appropriately. This has caused her time and trouble and meant C’s transition to secondary school was not a positive experience for him. There is evidence of fault and the Council has agreed to make payments for time and trouble and to look at its procedures.

The complaint

1. The complainant, whom I shall call Ms B, says the Council failed to issue an Education, Health and Care Plan for her son, C, in a timely manner. It has also failed to deal appropriately with her complaints.

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The Ombudsman’s role and powers

2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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.
7. 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

8. I considered the information provided by Mrs B and spoke to her on the telephone. I made enquiries with the Council and assessed its response. I sent Mrs B and the Council a copy of this draft decision and took the comments they made into account before issuing a decision.

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What I found

9. C was transitioning from primary to secondary education in September 2019. Mrs B says C’s primary school thought it was important C received appropriate support in secondary school by obtaining an Education, Health and Care Plan (EHCP) for him. This would set out his needs and how they should be met. It is a legal document; the provision set out in an EHCP must be put in place.
10. Although Mrs B says she wanted C to have an EHCP before this, a Council’s refusal to assess is appealable through the SEND tribunal and is not for us.
11. The Council says the school’s request was dated 7 May 2019 and it received this on 17 May. This would already be too late for C to have an EHCP on the day of transition but it would mean C would be at secondary school only about a month before the support was put in place. Councils have twenty weeks, from the date of request, to deliver a completed EHCP. The Council considers the twenty- week deadline was 24 September 2019.
12. The Council did not deliver an EHCP at that point. C’s final EHCP is dated 1 May 2020; an additional thirty one weeks and 3 days later. This is fault.
13. One of the factors in that delay was educational psychology input. Mrs B said to me that she was told C could not have educational psychology input until C had an EHCP. Clearly, in this case, it was necessary before the EHCP was issued, which is what I would expect. The Council seems to have asked for it on time. It needed to make sure the advice was received within the statutory timescale. Its failure to do this is fault and it caused time and trouble for Mrs B trying to chase this up. The Council should tell me what actions it will take to ensure this can be rectified for the future.
14. The educational psychology assessment was not carried out until November 2019 and completed in December 2019. The Council’s approvals panel was also asking further questions of the school at this point although the school thought it had provided everything asked of it. This could have been anticipated beforehand by the Council given C’s transition in the September. The school sent further advice in February 2020.
15. The Council produced a draft for consultation in March 2020.
16. The Council has provided evidence that, on 26 February, it backdated support for twenty-two and a half hours of support, as specified in C’s EHCP, to the school from the original 20 week date of 24 September 2019 until Easter. This means the school has had the money it needed to put in place the support for C from this date.
17. Mrs B is clear, however, that C did not benefit from all the support he was entitled to when he went to secondary school. Mrs B says, for example, C was not having all the 1:1 support. The Council had initially extended funding to the school for seventeen hours of support, which was just over 75% of the hours C needed. The Council later reimbursed the school for the twenty-two and half hours from the twenty-week point. Further, the school understood what support was needed as it had assessed C before he joined and would have been aware of its Equality Act (2010) duty to C. On this basis, I can understand why the Council might not have checked with the school to ensure it was delivering what was expected; the Council had good reason to assume C would be getting the support necessary even though the EHCP was delivered very late. Although there may have been fault in C not receiving the amount of help as set out in his EHCP; I cannot say the Council is responsible for this.
18. Mrs B also raised the point she was led to believe the transition from primary to secondary would be ‘smooth’ for C when it was not. As the secondary school made its own assessments before C joined it, it was in a good position to know what support would be appropriate. Transition between schools, for a young person without an EHCP, is a school matter and I cannot criticise the Council for it. As I have already said; the timing of the request meant C would not have had an EHCP upon joining the secondary school.
19. When Mrs B made complaints, the Council delayed responding at Stage Two. This is fault. This caused Mrs B time and trouble. The Council should tell me how it will ensure delays are minimised in the complaints process going forward. The key issue for Mrs B was to know when C’s EHCP would be delivered and the Council was not able to say. Council officers would not know this until the relevant panel met. It could, though, have kept her informed through the process but there is no evidence it did. Mrs B would not have expected to have needed to wait all that time for a finalised EHCP. This is fault, which caused Mrs B time and trouble. Mrs B was also put in the position of having to chase up responses, which is fault and added to the time and trouble. The Council should tell me how it might better keep parents informed through the process of achieving an EHCP.
20. If Mrs B does not think the EHCP sets out C’s needs with either sufficient clarity or enough detail (for example, if it does not reflect the assessments the school carried out prior to C joining it), she is now able to go to SEND.
21. Mrs B has told me, and the Council, that an officer gave C’s previous school wrong advice about EHCPs, which negatively affected C. I have not seen evidence to suggest this advice is what delayed the process of obtaining an EHCP for C. Also, it would be a matter for the school to decide how to proceed on advice from a professional.

Agreed action

22. For the Council to apologise for the delay in issuing C’s EHCP within two months of the date of my decision.
23. For the Council to make a payment for time and trouble for Mrs B of £200, which reflects the considerable amount of effort Mrs B had to go to through the process of obtaining an EHCP for C. It should make this payment within two months
24. For the Council to tell me how it will ensure educational psychology can properly respond to EHCP assessment requests within statutory timescales going forward within three months.
25. For the Council to tell me how it will ensure delays are minimised in the complaints process going forward within three months.
26. For the Council to tell me how it might better keep parents informed through the process of achieving an EHCP within three months.
27.  

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Final decision

28. Fault leading to injustice. Actions have been agreed to remedy that fault.

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Investigator's decision on behalf of the Ombudsman