Summary: Miss X complains her son, Z, has suffered injustice as a result of delay by the Council found in a previous investigation. A SEND Tribunal has now decided Z’s needs and it is clear he missed out on provision. Miss X also lost the opportunity to benefit earlier from provision ordered after a delayed assessment. The Council will apologise and pay Miss X £600.

The complaint

1. The complainant, whom I shall call Miss X, has returned to the Ombudsman. She complains it is now clear that fault by the Council found in complaint 18 017 430 has caused injustice to her son, Z and to her.

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The Ombudsman’s role and powers

2. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
3. 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)
4. 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)
5. 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

6. I spoke to Miss X and the Council on the telephone and considered documents both parties supplied. I referred to my earlier investigation into complaint 18 017 430. I referred to the Ombudsman’s Guidance on Remedies. I shared a draft of this decision with both parties, invited their comments, and considered those I received.

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What I found

7. Investigation 18 017 430 found the Council took nine weeks too long to issue an Education Health and Care (EHC) Plan for Z. It was clear this delay caused Z loss of SEN provision as he had not previously had an EHC Plan. But it was not clear what the loss was, because, Miss X appealed against the EHC Plan. We invited her to return after the appeal.
8. Similarly, we found the Council took four months too long to arrange a carer’s assessment for Miss X. When this happened, it recommended a mental health assessment, for which she has had to wait. It was not clear at the end of investigation 18 017 430 whether she had lost any provision as a result of the delay. We invited her to return after the mental health assessment.

Injustice

9. The delayed EHC Plan laid out provision for Z he had not previously received. The SEND Tribunal went further, quantifying and adding provision. So, but for the delay of nine weeks, each event after the delay would have happened nine weeks earlier. And Z would have received the SEN provision nine weeks earlier. That lost provision was injustice to him.
10. Miss X was offered a course of therapy. She sent me a letter from the NHS practitioner that showed what she received. So, but for the delay of four months, she would have received the therapy four months earlier. That was injustice to her.
11. Although the delay in the provision for Miss X was longer than the delay in the provision for Z, I am bearing in mind the outcome of the therapy as stated by the practitioner. Time in education passes quickly for children, and I note the injustice to Z occurred when he needed the provision to make better progress at school, having had difficulties for some time. I have therefore found the injustice to Z, while shorter in duration, was more significant and I have adjusted my recommendations accordingly.

Agreed action

12. To remedy the injustice caused by fault, the Council will, within one month of the final decision:

• Apologise to Miss X and Z for the delays of nine weeks in issuing the EHC Plan and four months in arranging the carer’s assessment; and
• Pay Miss X £600, comprising £400 for the nine weeks delay in SEN provision for Z and £200 for the four months delay in receiving the therapy.

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Final decision

13. I have upheld the complaint and closed the case as the Council will provide a suitable remedy for the injustice caused by the fault found.

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Investigator's decision on behalf of the Ombudsman