Summary: The Council’s delay in issuing a final Education, Health and Care plan resulted in Mrs B’s son not receiving sufficient special educational provision for 11 weeks. The Council has agreed to make a payment of £600 to acknowledge the impact of this.

The complaint

1. Mrs B complains about the length of time it took for the Council to issue a final Education, Health and Care plan and for her son to receive the special educational provision he needed. Mrs B says that it should not have been necessary to take the matter to a tribunal and doing so has cost her around £4000 in legal fees.

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What I have investigated

2. I have investigated how Mrs B’s son was affected by an 11-week delay in issuing a final Education, Health and Care plan. The last section of this statement explains why I have not investigated the other elements of Mrs B's complaint.

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The Ombudsman’s role and powers

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 have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Education Health and Care Plans

7. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the Special Educational Needs and Disability (SEND) Tribunal can do this.

Previous complaint

8. Mrs B previously complained to the Ombudsman that:
• there was unreasonable delay by the Council in completing the assessment of her son's special educational needs and issuing a final EHC plan;
• the Council failed to deal properly with her request for an Occupational Therapy assessment; and
• there was delay in dealing with her complaints about these matters.
9. We found that the Council failed to seek an Occupational Therapy report as part of the assessment and that it was responsible for a delay of 11 weeks in issuing a final EHC plan. At the time, Mrs B was in the process of appealing the content of the EHC plan to the SEND Tribunal. We told Mrs B that it was not possible to say whether the 11-week delay had any impact on the support provided to her son until we knew the outcome of the appeal. We advised Mrs B that she could complain to us again if the Tribunal ordered any extra provision so that we could consider whether to recommend a remedy for any loss of support during that 11 weeks.

Impact of the 11-week delay

10. Following our previous investigation, the Council arranged for an Occupational Therapist (OT) to carry out an assessment. The report recommended that Mrs B’s son be provided with six sessions with an OT, followed by a review to determine whether further OT input was needed.
11. Following a case management hearing held in February 2020, the tribunal judge ordered the Council and Mrs B to continue to liaise over the EHC plan working document and resolve three outstanding issues:
• Mrs B’s request for a Level 5 Dyslexia tutor (opposed by the Council).
• Mrs B’s request for more specificity regarding the number of hours in the EHC plan.
• The content of the NHS OT report and its implementation in the EHC plan.
12. The tribunal was held in May 2020 and Mrs B’s appeal was allowed in part. The tribunal judge ordered the Council to amend the EHC plan in accordance with the agreements reached between the parties.
13. The final EHC plan, issued after the tribunal, included the recommended OT support, an increase of support hours from 22.5 hours per week to 27 hours per week, and the provision of a level 5 BDA or above/equivalent advisory teacher.
14. If the Council had not delayed issuing the final EHC plan by 11 weeks as identified in our previous investigation, I consider Mrs B’s son would have received this additional special educational provision 11 weeks sooner.

Agreed action

15. Within four weeks, the Council will make a payment of £600 to Mrs B to acknowledge the impact of the loss of special educational provision for 11 weeks. The payment will be used for something which will benefit Mrs B’s son’s education.

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Final decision

16. I have completed my investigation and uphold the complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

17. Mrs B says that it should not have been necessary to take the matter to a tribunal and doing so has cost her around £4000 in legal fees. She says there were also delays in the appeal process caused by the Council. The Ombudsman has no power to investigate the Council’s actions in relation to the appeal process, and so we would not ask the Council to refund any legal fees associated with the appeal. It was open to Mrs B to make an application for costs at the time.

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Investigator's decision on behalf of the Ombudsman