Summary: Miss X complains of delay by the Council in issuing an Education Health and Care Plan for her son, Z, and in dealing with her complaint about this. There was fault by the Council, causing Z and Miss X unnecessary anxiety about whether his Special Educational Needs provision would be in place in time for his transfer to a new setting in September 2019, as well as time and trouble in chasing the Council’s complaint response.

The complaint

2. The complainant, whom I shall call Miss X, complains of fault by the Council when it issued an Education Health and Care (EHC) Plan for her son Z. She says this was in:
1. Failing to obtain advice from a neuro-psychologist;
2. The poor quality, content and advice in a report on Z’s Special Educational Needs (SEN);
3. Failing to include transport in the EHC Plan;
4. The attitude of a Council officer in emails sent on 7 and 15 February 2019;
5. Taking too long to issue the final EHC Plan; and
6. Taking too long to deal with her complaint about this.
3. Miss X says this caused her and Z stress.

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What I have investigated

4. I have investigated complaints d), e) and f. I give my reason for not investigating complaint a), b) and c) at the end of this statement.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. 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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How I considered this complaint

9. I read the complaint correspondence provided by Miss X and spoke to her on the telephone. I considered the SEN Code of Practice 2015 and the Ombudsman’s jurisdiction under the Local Government Act 1974. I shared a draft of this decision with both parties and invited their comments. Both parties accepted the draft.

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What I found

Complaint d): The attitude of a Council officer in emails

10. I have seen the emails from 7 and 15 February 2019 to which Miss X objected. I appreciate she felt the officer displayed a poor attitude. However, the content of the emails is not thereby fault.

Complaint e): Taking too long to issue the EHC Plan

11. A SEND Tribunal ordered the Council to assess Z for an EHC Plan on 31 December 2018. The SEN Code of Practice 2015 gives councils 20 weeks to complete the process. 20 weeks from 31 December 2018 was 20 May 2019. The Council issued Z’s EHC Plan on 13 August 2019. This was almost three months too late. I have seen no evidence Miss X contributed to the delay. Therefore, I find the Council at fault.

Complaint f): Taking too long to deal with Miss X‘s complaint

12. Miss X complained to the Council on 20 August 2019. It dealt with the complaint under its corporate complaints procedure and should have responded within 20 working days. It did not do so. Despite Miss X chasing the response, the Council did not issue one until 9 December 2019. The Council accepts this was fault. By this time, the Council had accepted Miss X’s request to move the complaint to the second stage of its procedure. It issued its second stage response on 20 December 2019.

Injustice

13. Z waited almost three months too long for his EHC Plan. Given he was in Year 11, he would have been taking GCSE examinations at the time when the EHC Plan should have been issued. And Year 11 pupils in mainstream schools, such as Z’s, do not usually attend school after late May other than for some revision sessions, because public examinations have started. So, unusually, I cannot say Z missed out on SEN provision between 20 May 2019 and the end of the school year two months later.
14. However, unlike pupils in most year groups, Year 11 pupils often transfer to new education providers in the September after they have taken their GCSE examinations. Z was due to transfer in this way to the provision named in his EHC Plan. Had the Council issued Z’s EHC Plan on time, the new provider could have met with Z and Miss X before the summer break to make sure matters were mutually agreed in advance. Because the EHC Plan was late, this was not possible until the second half of August. Miss X tells me the education provider has done an excellent job in meeting Z’s SEN from September 2019. I therefore find the delay caused Z and Miss X unnecessary anxiety for almost three extra months between 20 May and 13 August 2019 about the eventual content of Z’s EHC Plan and whether the provider would be able to meet his needs. This was injustice.
15. The Council’s delay in dealing with Miss X’s complaint caused her unnecessary time and trouble in having to chase it for a response. This was further injustice.

Agreed action

16. The Council has already apologised for some of the delay in issuing Z’s EHC Plan, and for taking too long to deal with Miss X’s complaint. However, to remedy the injustice caused by the fault found, the Council will also, within one month of the final decision:

• Apologise to Miss X and Z for taking almost three months too long to issue the final EHC Plan; and
• Pay Miss X £450, comprising £300 on Z’s behalf for the unnecessary anxiety caused by the delayed issue of the EHC Plan and £150 for Miss X’s time and trouble in pursuing her complaint.

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Final decision

17. I have upheld complaints e) and f) and closed the case as the Council has agreed to take the recommended actions.

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Parts of the complaint that I did not investigate

18. I have not investigated complaints a), b) and c). They are matters for a SEND Tribunal, not the Ombudsman, and I have no authority to consider them.

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Investigator's decision on behalf of the Ombudsman