Summary: The complainant says that the Council delayed in completing her granddaughter’s Education, Health and Care Plan and this has meant the child has lost out on important provision and the family caused avoidable distress. The Ombudsman upholds the complaint and has recommended actions to remedy the resulting injustice. The Council has accepted these. Therefore, the Ombudsman has completed his investigation and is closing the complaint.

The complaint

1. The complainant, who I refer to as Ms X, is complaining on behalf of her son and daughter-in-law in connection with how the Council dealt with their daughter’s (Ms X’s grandaughter’s) special educational needs. I refer to the granddaughter as Child C. The parents have provided consent for Ms X to pursue the complaint on their behalf.

2. In particular, Ms X complains that the Council:
1. failed to consult with all the relevant therapists and support workers involved when it agreed in January 2019 to carry out a statutory special educational needs (SEN) assessment;
2. issued a final Education, Health and Care Plan (EHC Plan) in April 2019 only to meet the statutory timescale of 20 weeks and knowing also the Plan was not complete and would have to be amended;
3. issued further draft EHC Plans in October and December 2019, which did not include all relevant information;
4. did not explore different resources at the same time, but rather sequentially, which led to delays in formulating the final EHC Plan;
5. failed overall to provide a final EHC Plan for Child C within the statutory 20 week timescale, the final Plan being issued on 28 February 2020, taking some 60 weeks to complete from the date of the request;
6. failed to provide Child C with her 15 hours free early education from the age of two, which she was entitled to.
3. The alleged injustice is that there has been a delay in formulating and agreeing Child C’s SEN entitlement, resulting in her not receiving the support which she required, sooner. Ms X also says that the family now have a lack of confidence in the Council’s SEN department and there has been avoidable, increased distress for the family. The family were already dealing with a very distressing situation and the Council’s alleged faults have compounded their predicament.

4. Ms X says that the Council has limited early years provision, and that this has meant that Child C has not received her entitlement to early education from the age of two which she badly needed given the extent of her needs.

5. In addition, the parents were limited in the hours they could work because Child C was not receiving her 15 hours early years entitlement. This was particularly difficult given they had had to take time off work for over a year, unpaid, when Child C was in hospital receiving treatment. The parents needed to get back to work.

6. Ms X says that, had the Council issued a comprehensive and accurate Plan within the required time (April 2019), the parents would have asked for Child C to attend an early year placement to help her rehabilitation and to enable the parents to re-establish their careers. Child C would also have had the protection of a Plan and the parents would have been entitled to request particular provision.

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The Ombudsman’s role and powers

7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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)
8. 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)
9. 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)
10. SEND is a Tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
11. 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)
12. 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

13. I have spoken to Ms X on the telephone and made enquiries of the Council. Ms X has commented on the Council’s response to my enquiries.
14. Child C’s parents could have appealed the final Plan issued in April 2019. However, they were told that the Council was willing to seek additional information and amend the Plan. I have therefore exercised the Ombudsman’s discretion to investigate the Council’s actions, after this date (April 2019), because I consider it would have been unreasonable to have expected them to have appealed.
15. I am therefore looking at events from November 2018 to 28 February 2020 when the final amended Plan was issued. Child C’s parents had a right of appeal to the Tribunal at this point.
16. The Council has investigated Ms X’s complaint under its complaint procedure. It accepted that there had been some undue delay and apologised. But the Council did not consider what injustice might have been caused or whether a remedy was required.
17. I issued a draft decision statement to the Council and to the complainant. I have considered their additional comments when reaching my final decision.

What I found

Special Educational Needs (SEN)

18. The Children and Families Act 2014 changed the way councils should assess the special educational needs and disability of children and young people up to the age of 25.
19. Accompanying the Act, the government issued the Special Educational Needs and Disability Regulations (the Regulations) in 2014 and the Special Educational Needs and Disability Code of Practice (the Code) in January 2015. The Code provides statutory guidance on the law and the Regulations.
20. Councils and health Clinical Commissioning Groups (CCGs) must have arrangements in place to plan and provide education, health and social care services for children and young people with special educational needs. They must agree how they will work together to achieve this.
21. Once an assessment determines that special educational needs provision is required for a child, the council must issue an Education, Health and Care Plan (EHC Plan). The council has a duty to ensure it is in place and is maintained.
22. Councils should issue an EHC Plan within 20 weeks of the request for a statutory needs assessment unless certain exemptions apply.
23. The Regulations say that a council must consult the child’s parent or the young person as soon as practicable after receiving a request for an EHC needs assessment. After this, the council must decide whether to carry out an EHC needs assessment within six weeks and must notify the parent or young person it is considering doing so.
24. If a council decides to complete an EHC needs assessment, it must do so according to the correct procedure and within the fixed timescales set out in law and detailed in the Code. This includes a requirement to collect evidence from education, health and care professionals.
25. During the assessment process, councils must seek advice and information from certain people. The Regulations sets out the list of people to consult, which includes:

• the child’s parent or the young person;
• educational advice (usually from the head teacher or principal);
• medical advice and information from a health care professional;
• psychological advice and information from an educational psychologist;
• advice and information in relation to social care;
• advice and information from any other person the local authority thinks appropriate; and
• advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from. This can include a speech and language therapist, occupational therapist, physiotherapist or someone from the Child and Adolescent Mental Health Services.

26. If a parent or young person already has their own advice and reports, these can be submitted as part of their own advice, which councils must ask for. This will ensure the advice and reports form part of the assessment process. This evidence must then be considered by the council when it makes its decision about whether to issue a EHC Plan.
27. Professionals should provide their advice within six weeks of the request.
28. The Early Years Foundation Stage (EYFS) is the statutory framework for children between the ages of 0-5. Early Support helps the better delivery and co-ordination of services for disabled children.
29. As from September 2014, 2 year olds in receipt of disability living allowance were entitled to free early education. Information about this should be included in a council’s Local Offer. Councils must publish a Local Offer setting out information about provision for those with special educational needs (SEN) in its area and in neighbouring boroughs.
30. Some Early Years support can be provided at home by a structured programme to help parents develop their child’s skills and learning (Portage). Referrals for this can come from health, education and social care.
31. Paragraph 9.61 of the Code states that EHC Plans should be clear, the outcomes must be specific, measurable, achievable, realistic and time-bound (SMART) and the Plan must consider how these can be met.
32. Once a draft Plan has been issued, parents/carers are entitled to request a particular educational placement. Councils should name the placement requested unless they believe that the placement would not meet the needs of the child, would be incompatible with the efficient education of others and incompatible with the efficient use of resources.
33. Section 9.83 of the Code states that, once a school placement is named in the final Plan, the pupil must be admitted to that school.
34. Parents and young people can request a local authority provide a personal budget for special educational provision in an EHC plan and request direct payments. The request must be made when the draft EHC plan is being prepared, reviewed or re-assessed. (The Special Educational Needs (Personal Budget) Regulations 2014 Section 4(1))

The Council’s procedures

35. Since the making of this complaint, the Council has made some changes to its procedures. In particular, it now asks parents/carers at the outset, when a special educational need assessment is requested, what information they consider is required and who should be consulted. The Council also makes a list of the key professionals to consult from the paperwork provided by the parents and/or schools/nurseries.
36. The Council now sets alerts at four and six weeks so to ensure professional advice is received on time. There are also weekly meetings to monitor progress.
37. In March 2019, the Care Quality Commission (CQC) and Ofsted issued a joint inspection report highlighting that, while EHC Plans were improving, they still remained variable and parents had lost confidence in the Council. In response, the Council has introduced a quality assurance framework to ensure that Plans are written in accordance with the Code.

What happened

38. Child C suffered a serious tumour as a baby which caused significant developmental difficulties and meant that she was subject to prolonged medical treatment in hospital.
39. Child C is diagnosed with physical disabilities, global delay and is profoundly deaf. Ms X says that the family was very distressed but received a lot of support from the medical profession while Child C was in hospital and on her discharge.
40. In late November 2018, the parents requested a statutory assessment of Child C’s special educational needs. At this stage she was not yet two years old. The parents provided some advice from the Occupational Therapist and Physiotherapist who had been involved with Child C.
41. On 14 January 2019, the Council sent requests for advice to an Educational Psychologist and advice from the medical professionals involved with Child C. The Educational Psychologist provided her advice by 20 February.
42. The Council issued a draft EHC Plan on 4 April, but the parents say that they did not receive this until 22 April. The parents were concerned about the content of the draft Plan and the lack of specificity in the Plan as required. They requested a meeting. This could not be arranged until 16 May. The Council said that the purpose of this meeting would be to discuss the requested amendments and to discuss the parents’ concerns about the Plan.
43. The Council issued the final Plan on 3 May but says that it should have been issued by 13 April 2019. Ms X says that the Council did not discuss with the parents that it would issue the final Plan, even though it knew the parents were concerned about the draft Plan, in particular its content and lack of information from important professionals.
44. Ms X says that the Council said that it had to issue the Plan to meet the statutory timescales. But the Council told the parents that it would consider further advice and evidence and would be able to amend the final Plan. The parents were concerned about this approach and considered that they should make a complaint, rather than appeal.
45. In early May 2019, the Council sought advice from the Hearing Support Officer and from an Advisory Teacher. Ms X says that this is advice which the Council should have sought initially.
46. Child C’s parents emailed the Council in preparation for the 16 May meeting, saying that they were concerned because (I paraphrase):

• The Plan failed to specify and quantify the support that would be provided i.e how often, how long, how its delivery will be monitored/reviewed?
• What were the outcomes the support intended to achieve?
• There were insufficient SMART targets in the Plan;
• The Plan suggested a school. But that school did not have a place available, but no alternative had been suggested;
• A valued Hearing Support worker had not contributed to the content of the Plan, but she would continue to support Child C in an educational setting;
• Portage was mentioned as being in place, in the Plan, however this was incorrect. Portage had received a referral but had not contacted the parents yet. In the Plan there was no indication of how Portage would work or how often. Given the current absence of a nursery place, to which Child C was entitled since January 2019, the parents asked whether she could receive educational support at home until an educational setting was secured;
• To date, due to illness, Child C had had only one hydrotherapy session. The parents explained that this was a key part in her future care and education;
• The Plan needed to include an agreed medium through which Child C's communication skills would be developed, so that all contributors are using the same methodology;
• Child C’s next developmental assessment was due; it made sense to include the outcomes in the revised Plan;
• The parents asked whether it would be possible for Child C to have a personal budget.
   

47. On 16 May, there was a meeting with Child C’s mother, Ms X and two officers from the SEN department. The above matters were discussed, and the Council said that it would amend the Plan and issue a draft.
48. On 18 July, the Council issued a draft EHC Plan. But the parents still had concerns about the lack of specificity and explained this to the Council. The parents chased the Council to issue a final Plan, asking it to take account of all the professionals’ advice and to issue a Plan, which met the requirements of the Code in terms of content and specificity.
49. In January 2019, Ms X says that Child C was eligible for Early Years help and free education. This was because Child C was in receipt of disability living allowance and had been since she was eight months. Ms X says that Child C received no Early Years education provision until September 2019, when she started at a nursery. But initially this was only for three hours per week, then for six hours. Ms X says that this was nine hours short of her 15 hour entitlement of free education.
50. This support ended in March 2020 because of Covid 19.
51. The Council says that, in addition to the hours at the nursery, Child C also received help from the Portage service and was offered a weekly swimming session. Ms X says that the swimming pool was some distant away and the Portage service was not an alternative to Early Years educational provision.
52. By October 2019, the parents had still not received a further draft EHC Plan, as promised. Ms X therefore made a complaint to the Council. On 11 October, the Council issued a draft amended Plan. There were two further amended draft Plans issued, after this. Ms X says that this was because the Council had still not issued a draft Plan which met the criteria of the Code in respect of content and specificity.
53. The Council says that there are various maintained and independent nurseries and pre-school facilities for children from the age of 2 with special educational needs and disability. These facilities can apply for early year funding. The Council says that Child C was not eligible for early year funding until she was 2 years and 9 months, as a rising three years old. This is disputed by the parents.
54. Ms X says that the Council did not provide the parents with the possible educational options for Child C and they felt the Council seemed unwilling to help them find suitable provision. The Council also failed to consult possible placements concurrently.
55. Ms X says that the Council first consulted a special maintained school (School D) in February 2019, after Child C’s mother had visited, and thought it might be suitable. But School D would not admit Child C. Ms X says that the parents were not told this directly by the Council; they learnt this from a therapist. The Council again consulted School D in September 2019, but the school was unable to admit Child C because it said that she was too young.
56. A therapist suggested a special independent school (School B) for Child C and the parents explored this option and considered it was the best school for Child C. They therefore requested that this placement was named in Child C’s final Plan, saying that School D was no longer suitable and there was no place available anyway. But, without this advice from the therapist, Ms X says that the parents would not have been aware of School B. It was not suggested to them by the Council.
57. The Council says that it approached two special schools (one of them being School D), which admitted pupils from 2.5 years and the other from 2.9 years. But neither school was able to accept Child C because they said that Child C was too young at that time. It is not clear whether the Council approached these two schools concurrently or consecutively. But I have accepted Ms X’s account although it is open to the Council to provide evidence to show otherwise.
58. I cannot see that the Council suggested School B of its own volition to the parents when it became apparent that School D would not admit Child C. But it did consult School B when requested to do so by the parents.
59. The Council issued a final amended Plan on 28 February 2020, naming School B as the suitable placement. Child C was due to start in September 2020.

Analysis

60. The essence of this complaint is that Ms X alleges that the Council took about 60 weeks to issue a comprehensive and appropriate EHC Plan in February 2020. The Council says that it issued a final Plan on 3 May 2019 which was three weeks over the statutory timescale.
61. It is the case that the Council issued a final Plan on 3 May 2019. And I can see that the Council was trying to ensure it met the statutory timescales. But it cannot be right to regard a Plan, as final, if the Council says, at the same time, that the Plan can be amended, and further professional advice will be sought.
62. This amounts to the Council meeting the statutory timescale but without paying attention to the other requirements under the Code about who should be consulted at the initial stage and about the need for the Plan to accurately record the child’s special educational needs, ensuring also that the provision is specific and the outcomes clear.
63. Child C has complex needs and I can see that devising an appropriate Plan might have been more complicated. But the Code does not allow ‘extra time’ in such cases.
64. Accordingly, I consider that there has been fault by the Council in that it has delayed over a prolonged period to issue an appropriate final Plan. I also find fault in that it took so long for the Council to devise a Plan which met the requirements of the Code.
65. It is also fault for the Council not to consult schools concurrently. I recognise that initially the parents thought School D might be suitable. But the Council would have been aware that there is no guarantee that consultation will lead to a placement. So, it is important that the Council explores all options concurrently as is recommended in the Code.
66. Further, Child C was in receipt of DLA. That made her eligible for Early Years funding from the age of 2, not from the age of 2.9 months. It is fault that the Council was unaware of this and did not provide it. Child C lost out on six months of 15 hours educational provision between January to July 2019 and then did not receive her full entitlement between September 2019 to March 2020.
67. And, had the Council issued a comprehensive Plan by April 2019, the parents could have requested an early year educational placement and the Council could have directed admission of Child C if it considered that this was a suitable placement. Alternatively, they could have requested a personal budget.
68. However, I do recognise that, despite the protracted period to issue an EHC Plan, the final outcome is that Child C has now been placed at an appropriate school and has an appropriate Plan, whereby the parents do not consider it is necessary to appeal.
69. The Council says that it has learned lessons from this complaint, in particular about the early stages of the assessment and the need to speak to the parents about who should be consulted. Submitted paperwork from parents and/or the school/nursery might not include all the relevant facts. So, I consider that this is an appropriate improvement by the Council.
70. Ofsted/CQC inspection will also have made recommendations to improve SEN practice.

Injustice

71. The protracted process of issuing a Plan, which properly reflected Child C’s needs and abilities and met the other requirements of the Code, has caused avoidable distress to the parents, who were already coping with a life changing event. They had to also spend a year caring for Child C while she underwent intrusive medical treatment. The parents gave up work and were unpaid during this period.
72. The Ombudsman’s Guidance on Remedies makes the following points:

• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;
• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.

73. Where there has been a loss of educational provision, the Ombudsman normally recommends between £200 to £600 per month.
74. I am satisfied that the avoidable distress and frustration to the parents was prolonged and severe given the circumstances requiring the need for an EHC Plan for Child C. There was also a lost opportunity for the parents to request a personal budget (had the Plan been issued in April 2019) which might have been a viable option in the absence of a suitable early year placement.
75. So, I consider that a symbolic payment of £1,000 for the parents’ avoidable distress and lost opportunity is appropriate.
76. Child C was entitled to 15 hours free early year education from January 2019 (as I understand the statutory guidance). But it appears that Child C did not receive her entitlement then, and then only received limited hours once the Council deemed she was eligible for Early Years funding in September 2019.
77. It would be difficult to accurately assess the impact on Child C by this. But, on the balance of probability, Child C required intensive and consistent support and any loss of her entitlement would have a significant adverse impact. So, I would recommend a payment of £2,000 to recognise this, which the parents can use to provide any additional service/equipment which they consider will help Child C’s development.
78. In recognition of Ms X’s time and trouble in chasing up the issuing of the final Plan, and her time and trouble in pursuing the complaints, I recommended a payment of £250.00 in recognition of this.

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Agreed actions

79. Within two months from the date of the final statement, the Council will;
1. apologise and pay the parents £1,000;
2. pay Child C £2,000 to be used by the parents; and
3. apologise and pay Ms X £250 for her time and trouble in pursuing the final Plan and complaint.
80. The Council has brought in improved procedures to try to prevent a re-occurrence of the faults in this case. The Council will, or has, responded to the recommendations from the joint CQC/Ofsted inspection. But I consider the Council should within two months of the date of the final statement:

• ensure that staff are aware of a child’s entitlement to 15 hours free Early Year funding if in receipt of DLA;
• consider whether its Local Offer on its website gives parents sufficient information about the provision available in its area and in neighbouring areas; and
• consider whether any further training is required to help SEN officers in writing appropriate EHC Plans, perhaps using this complaint as a useful case study with names redacted.

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Final decision

81. I consider that there has been fault by the Council and this has caused injustice to the parents, to Child C and to Ms X. The Council has accepted the findings and recommendations. I have therefore completed our investigation and I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman