The Ombudsman's final decision:
Summary: Mrs M complained that the Council failed to issue an Education, Health and Care Plan within statutory timescales for her daughter, N. She says the Council also failed to act when N was out of school because of her anxiety. When she made complaints, the Council failed to answer them fully. This has caused her distress and time and trouble chasing the Council for responses. The investigation has found evidence of fault leading to injustice for Mrs M and N and a remedy to that injustice has been agreed.
- The complainant, whom I shall call Mrs M complains that the Council failed to issue an Education, Health and Care Plan (EHCP) for her daughter N in a timely way. It also failed to take action when N was out of school and delayed dealing with complaints. She says this caused her and her family a great deal of distress and N started at a school very late.
The Ombudsman’s role and powers
- 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)
- We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- 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.
- 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)
How I considered this complaint
- I considered the information Mrs M provided with her complaint and spoke to her on the telephone. I accessed relevant law and guidance. I made enquiries of the Council and assessed its response. I sent Mrs M and the Council a copy of my draft decision and took the comments they made into account before issuing a decision.
What I found
- N is on the autistic spectrum and has a range of other needs. On 28 May 2019, the Council accepted a request for N to be assessed for an Education, Health and Care Plan (EHCP). The Council should have made a formal decision to issue an EHCP on 16 September 2019 but it did not.
- The Council accepts it should have issued N’s final EHCP on 14 October 2019. It did not issue it until 13 February 2020; a delay of nearly four months. There were a number of factors in that delay including Educational Psychology (EP) input and the need for an assessment at the identified school, which I discuss below.
- In the meantime, N had stopped attending school on 2 October 2019 so it was important to Mrs M for N to be properly supported both at home and then in another placement as soon as possible.
- This complaint centres on the Council’s delay in issuing the EHCP for N.
Educational Psychology report for the EHCP
- The Council said it did not decide to issue an EHCP, as it should have done, on 16 September as it did not have a report from the Educational Psychologist (EP) at the time. The request for an EP assessment was made on 8 July 2019, which was within statutory timescales. The Council would expect a response from the EP in six weeks (i.e. on 9 August 2019) but this did not happen.
- The caseworker had spoken to Mrs M about the need for an EP report on 11 September. Mrs M had asked the Council whether she could use a private service. She was told this would not be a good idea because the report would need to detail needs, methodologies to meet those needs along with outcomes. Senior management would have to agree to use any report that was not produced by its commissioned EP service. The Council told me, in its response to enquiries, it would not recommend parents doing this.
- On 18 September the Council again alerted the EP service to N as ‘a priority’ because the report was considerably overdue.
- When writing to Mrs M on 23 September, the caseworker acknowledged Mrs M’s ‘frustrations within this situation and the impact it has on the EHCP timelines’ and apologised for it, which was appropriate.
- N was allocated to an EP on 4 October and the Council asked the Senior EP to prioritise quality assuring the report on 11 October. Mrs M was contacted by a locum EP on 5 November. The home visit was completed on 15 November and the Council received the completed advice on 2 December.
- In the interim, Mrs M contacted her local Member of Parliament (MP) who said she had written to the Chief Executive on 28 October and advised of a response having been given on or around 4 November. The Council has no record of a response being made to the MP, although as a locum EP contacted Mrs M soon after, there is no injustice to Mrs M. I am not, then, making a finding of fault.
N being out of school
- N’s anxiety meant she could not attend school after 2 October.
- I have seen the notes of a meeting held at school on 14 October where the suggestion was that N could come in for 30 minutes on a Wednesday with a phased timetable centred around sensory circuits and access to the nurture room. This was to be followed up at a meeting the next month. The Council’s Autism Outreach Team had also been involved in recommending ways to support N at school.
- Children and Adolescent Mental Health Services (CAMHs) said later in October that N might be able to attend school for an hour per day ‘to begin with’ but she could not manage this.
- The school was sending work home for N. On the balance of probabilities, a part time timetable would have been considered appropriate intially (since school felt she would only manage an hour each day if she attended). However, there is no evidence the Council identified whether more support was required. Delay with the EHCP also delayed N having an earlier full-time placement at the special school she now attends.
Issuing the EHCP
- I have already explained the EHCP was delayed because of the lack of an EP report. Delay was also caused because of the need for an assessment at the requested school and the Council’s approval process for that school.
- The Council sent the parental choice school a copy of N’s draft EHCP on 10 December 2019 with a response date of 24 December. On 17 December, the school told the Council it would arrange a visit on return to school in January and asked for Mrs M’s contact details, which the Council provided in under ten minutes from the time of request. The keyworker wrote to Mrs M on 23 December to advise her of this.
- The assessment and formal offer was made by the school on 13 January 2020.
- Because of the cost of the school, this needed to be considered at a decision making panel, which first met on 7 January (before the school had offered a place to N). The following meeting was 22 January at which N’s placement was agreed.
- A councillor wrote to Mrs M on 14 February to explain that; “whilst the school placement was agreed in principle at the County Decision Making Group meeting on 22 January. Due to the cost of the placement this was required to be approved by a senior officer and unfortunately there was a delay in the request being passed to (the relevant assistant director) for authorisation as quickly as was intended”.
- The final EHCP was issued on 14 February and attendance started after the half term holiday on 24 February with an associated travel budget.
- The Council accepts there was delay in the stage 1 complaint being responded to and a slight delay in confirming the outcome of the complaint at Stage 2 of the Corporate Complaints Procedure. Mrs M says the Council did not answer her complaints appropriately.
What should have happened
Educational Psychology report for the EHCP
- When matters are referred for a statutory process, timescales should be adhered to.
- The Council could, and should, have chased the EP once the report was overdue. I understand there were staff shortages in the department, and I also understand there was a national shortage of EPs. It is still the Council’s responsibility to ensure advice is received in time. That the Council did not receive the EP report within the statutory timescales is fault and it has caused Mrs M time and trouble chasing it up. It is also clear that this delay, even without any other delays, meant the statutory timescale for the EHCP would not be met.
- I accept the Council says it would not recommend parents seeking private EP assessments although it was inevitable the Council would be asked for its views on this given the delay in allocations. I am not, however, finding it at fault for this. The Council has confirmed it has recruited more EPs, accessed more locums and employed more caseworkers, to suggest the delay experienced by Mrs M is less likely to recur. This is what I would have recommended so I will not make any further practice recommendations.
N being out of school
- The relevant statutory guidance (“Ensuring a good education for children who cannot attend school because of health needs” issued in May 2013) says that a Council must arrange as much education as the child’s health allows (if not full time) once it is aware the child will be absent from school for more than fifteen school days.
- As it was aware N was out of school, and her EHCP says she needs 1:1 support to access the curriculum (which was not being provided by the school), the Council acted with fault in failing to consider whether N needed additional education or support to access the education she may have benefitted from.
- The Council’s fault caused Mrs M distress. She cannot know if N could have accessed more education with additional support. She also cannot know whether additional support may also have helped address N’s considerable anxiety, which manifested in her always needing Mrs M, or her husband, in the house. I appreciate that this also affected relationships with N’s sibling.
Issuing the EHCP
- By the time the draft EHCP was sent to the school, it was outside statutory timescales by around three months. This is fault. It also meant Mrs M had to comment on the draft in December, when she would normally have been preparing for Christmas. Nevertheless, it was important for the Council to send the draft as soon as possible given it had been so delayed. The Council has told me that if Mrs M had requested an extension of time it would have considered this although she did manage to comment in time. Although an extension was not offered I do think it was reasonable for the Council to expect Mrs M to ask if this was necessary.
- Naming the school of choice in the final EHCP (rather than simply a type of school) and putting in the EP advice meant Mrs M would not have to go to SEND to change the provision for N. However, the delay was fault and Mrs M was put to time and trouble chasing up progress. By the time the Council issued the final, it was four months off the timescale, which is also fault.
- If the Council had maintained the timescale, N may have been able to start full-time education at the school after October half term rather than February half term. I consider the Council’s fault meant she lost out on that opportunity.
- I do not consider the complaints procedure was likely to deliver Mrs M the outcome she wanted. Mrs M wanted the Council to use the learning from this to issue the EHCP for N but there were other factors involved in the delay, which I have already outlined and where I have already found fault.
- The Council is at fault for its failure to adhere to its guidance but the failure did not cause Mrs M sufficient injustice for me to investigate. I have highlighted above where there was injustice in the substantive matters complained of.
- For the Council to apologise for the fault identified within a month of the date of my decision.
- The actions of the Council caused Mrs M time and trouble chasing it for the EP report and for the EHCP. The Council should make a payment to her of £200 as an appropriate remedy in line with our guidance within three months of the date of my decision.
- For the distress and anxiety caused to the family by the Council’s failure to consider whether more education should be provided to N when she was out of school (or whether she needed support to access the education she was provided with) the Council should make a payment of £300 to Mrs M within three months of the date of my decision
- For N’s lost opportunity to potentially start full-time at the school a term earlier, the Council should make a payment of £1,200 (£300 for each of four months) for educational purposes. The Council should ask the school, within a month of the date of my decision, to identify how this might be spent to best benefit N with the aim of making the payment within three months.
- I have found evidence of fault leading to injustice and remedies to the injustice have been agreed.
Investigator's decision on behalf of the Ombudsman