Summary: Mr C complains the Council delayed issuing D’s Education and Health Care Plan (EHCP). He also complains the Council failed to provide the provision set out in the plan. We find fault with the Council. This caused an injustice to D and Mr C. The Council agrees actions to remedy the injustice.

The complaint

1. Mr C complains about the Councils delay issuing his son, D’s, final EHCP. He says the there was a delay fully assessing D and the Council failed to secure a school place to meet his needs.
2. Mr C says the Council failed to provide education for D while he was not in school.
3. Mr C says this caused distress to his family and significant time spent trying to resolve the issues with the Council. He also says this affected D’s education.

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The Ombudsman’s role and powers

4. 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)
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. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
7. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
8. 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)
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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How I considered this complaint

10. I considered the information Mr C provided with his complaint. I made enquiries with the Council and considered its response with the relevant law and guidance.
11. Mr C and the Council had the opportunity to comment on my draft decision. I carefully considered the comments I received.

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What I found

Education, Health and Care plans (EHCP’s)

12. The special education needs and disability code of practice 2015 (The Code) provides statutory guidance on the duties Councils have in relation to part three of the Children and Families Act 2014. It relates to children and young people with special education needs (SEN) and disabled children and young people.
13. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
14. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
15. If parents or a young person disagrees with the content of an EHCP or the proposed placement, they can appeal the First Tier Tribunal Special Educational Needs and Disabilities (SEND) Tribunal.
16. The process of EHC needs assessment and EHC plan development must be carried out in a timely manner. The time limits are the maximum time allowed.
17. The whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested until the final EHC plan is issued, must take no more than 20 weeks.

What happened

18. Mr C is D’s father. D has a diagnosis of Autism Spectrum Disorder (ASD). ASD is identified as his primary special educational need.

The EHCP process

19. Mr C requested an education health care needs assessment for D in June 2019.
20. The Council agreed to the assessment in August 2019. It told Mr C it would decide whether D needed an EHCP by 18 September 2019.
21. The Council sent its draft EHCP to Mr C on 31 October 2019. It sent the draft plan to the wrong address so Mr C did not receive a copy until 7 November 2019.
22. Mr C confirmed his agreement and named school A as their preferred school for D.
23. The Council consulted with several schools in November and December 2019, including school A.
24. In February 2020 the community health team asked the Council if D was eligible for a teacher to attend the family home whilst a suitable school placement was found. The Council said it was exploring options for D to be supported at home.
25. The Council issued the final EHCP on 5 March 2020. It did not name a school.
26. In May 2020 the Council agreed to fund one to one support for D until it could find a suitable school place.
27. In July 2020 the Council received a positive response from school B. The place at school B was available for D to start in September 2020.
28. Mr C registered an appeal to the SEN tribunal. He appealed the content and named school. He named school A as the preferred school for D.
29. In July and August 2020 the Council corresponded with Mr C about the placement at school B. Mr C agreed to accept the place at school B and withdrew his appeal.
30. The Council sent an amended EHCP in September 2020. Mr C responded in February 2021 and the Council issued the final EHCP.

Complaint handling

31. Mr C complained to the Council in January 2020. He was unhappy with the delays issuing D’s EHCP and a lack of provision. The Council responded at stage one of its complaint process in June 2020. Mr C remained unhappy with the response and asked for the Council to consider his complaint at stage two. The Council responded in August 2020. It upheld three out of five complaints.
32. It upheld Mr C’s complaints about:
• Delays issuing D’s EHCP.
• Sending EHCP correspondence to the wrong address.
• Sending education resources to the wrong address.
33. It did not uphold Mr C’s complaints about failing to provide age-appropriate resources for D or the decision about which school to name in the EHCP.
34. Mr C was unhappy with the Council’s final response and complained to the Ombudsman.
35. In response to my enquiries the Council accepts:
• It was at fault for failing to issue the EHCP within the statutory timeframes.
• There was a further delay naming a school in then EHCP.
• It agrees the delays caused an injustice to D. He missed out on education during this period.
• It offered a financial payment of £4800 to acknowledge the injustice to D.

My findings

36. We welcome the Council’s acknowledgement of fault and the suggested remedy for the injustice to D.

Delays issuing the EHCP

37. The Council should have issued the final EHCP no later than 13 November 2019. It issued the first final EHCP on 5 March 2020. This was a delay of nearly 16 weeks. This is fault. This caused an injustice to D because he missed out on the provision during this period. It also caused distress to Mr C.
38. It delayed Mr C’s right of appeal. This is fault. But I do not think this caused Mr C a significant injustice. Mr C did make an appeal, but he subsequently withdrew it.

Educational provision for D while out of school

39. D missed out on the educational provision he was entitled to between 13 November 2019, when the Council should have issued the final EHCP, and 21 July 2020.
40. During this period, D was not in school and the Council failed to provide him with the provision he needed according to his EHCP. This is fault.
41. This caused D an injustice because he missed eight months of education. The Council offered a suitable remedy for the injustice it caused D.

Complaint handling

42. Mr C complained in January 2020 and received a response in June 2020. Mr C was not happy with the response and asked the Council to reconsider his complaint at stage two of its process. It provided a final response in August 2020
43. The Councils policy says it will generally provide a full response in 28 days. It says in more complex cases this may extend to 90 days but the complainant should be informed of any extension and provided with a new response date.
44. It took seven months to complete the complaint process. The Council failed to respond within the timeframes it sets out in its policy and failed to explain the delays and agree an extension with Mr C. This is fault.
45. This caused Mr C an injustice. He experienced frustration and time and trouble pursuing his complaint and bringing it to us.

Agreed action

46. Within one month of my final decision the Council agrees to:
• Pay D £4800 in recognition of the educational provision he missed out on.
• Pay Mr C £300 to recognise the distress, time and trouble it caused him.
47. Within two months of my final decision the Council agrees to:
• Remind relevant staff of the importance of complying with the statutory timeframes for the EHCP process.
• Review its policy for providing children out of school with EHCP provision while a suitable placement is identified.
48. The Council should provide the Ombudsman with evidence it has completed the above actions in the timeframes.

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Final decision

49. I find fault causing injustice. The Council agrees actions to remedy the injustice.

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Parts of the complaint that I did not investigate

50. I did not investigate Mr C’s complaint about the school named in the EHCP. There was a right of appeal to the SEND tribunal about the contents of the plan.

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Investigator's decision on behalf of the Ombudsman