Summary: There was an eleven month delay in issuing an EHC plan. While the Council has accepted fault and offered a financial remedy, this is lower than the Ombudsman would usually recommend. A recommendation to increase the payment is made.

The complaint

1. Mr X complains he has suffered financial loss due to the Council’s delay in issuing an Education, Health and Care plan for his daughter which in turn delayed her being able to attend a special school. While the Council has accepted fault and offered Mr X a financial payment, Mr X does not consider the offer to be sufficient for the injustice caused.

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The Ombudsman’s role and powers

2. 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)
3. If a council has investigated something under its complaint procedure and offered a remedy, the Ombudsman would not normally re-investigate unless he considers that investigation was flawed, or the offer was not fair and proportionate to the injustice caused.
4. We aim to remedy personal injustice where our investigations reveal there has been fault. There must be a clear link between any fault we find and the personal injustice to the complainant. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. (Ombudsman’s Guidance on Remedies)
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)

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How I considered this complaint

6. I have considered information provided by Mr X and the Council, including the complaint correspondence. I have also spoken to Mr X by telephone.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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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What I found

Factual background

9. Mr X and his wife made a request for their daughter to be assessed for an Education, Health and Care (EHC) Plan on 7 January 2019. Their daughter’s paediatrician also made a request on 9 January 2019.
10. The law says that Councils must give their decision to any request to assess within a maximum of six weeks. When the Council agrees to assess, it must collect evidence and decide whether to issue an EHC Plan, with any final Plan to be issued within twenty weeks of the original request. (Children and Families Act and SEND Regulations, 2014)
11. The Council acknowledges it did not give a decision agreeing to start the assessment until 17 October 2019, a six month delay.
12. Had the Council agreed the request on time, a final Plan would have been due by the end of May 2019.
13. In January 2019, Mr X’s daughter was not attending school as the family had recently moved to the UK. She was admitted to a primary school on 29 April 2019. In September 2019 she transferred to a mainstream secondary school.
14. The mainstream secondary considered it was not suitable for Mr X’s daughter’s complex needs. It provided evidence for an EHC assessment on 15 October 2019 and the Council decided to issue an EHC Plan on 13 February 2020. After consulting several local schools, the Council issued a final Plan on 20 April 2020 naming a special school, which Mr X’s daughter started to attend on 5 May 2020.
15. The timescale from deciding to assess on 17 October 2019 should have been no more than fourteen weeks, with a final Plan due in January 2020. There was therefore a further three month delay once the EHC assessment started. The Council says this was due to consulting several schools.
16. Mr X complained in February 2020. The Council accepted it was at fault. In total there was an eleven month delay between when the Plan should have been issued and the date Mr X’s daughter started her specialist placement. The Council acknowledged this in its stage two response. It said that between January and March 2019 Mr X had not applied for a school place and for the next seven months education was provided while more suitable provision was sought. His daughter had a high attendance rate from when she started to attend school in April 2019 and so had not been without a school place.
17. The Council offered Mr X £1400 for the delay his daughter had experienced in transferring to more suitable schooling and Mr X £250 for his time and trouble pursuing his complaint.
18. Mr X had also asked the Council to pay for lost earnings. Mr X said he was working away from home in London but had to move home as his wife could not drive and so could not get their daughter to secondary school and he had to drive her. Mr X says his earnings in their home town are less than they were in London. The Council said it could not consider ‘compensation’ for this type of loss.
19. The primary school Mr X’s daughter attended from April to July 2019 was two miles from their home. As both Mr X’s children attended the same school he says his wife was able to take them. However, when his older daughter moved to secondary school he says this was not possible as it was five miles away. Mr X says it was at this point that he moved back home.
20. I asked the Council about school transport. It said that when it issued the draft plan in March 2020 it included information about transport assistance and signposted Mr X to the local offer. Mr X applied for transport assistance in July 2020 to his daughter’s specialist school and this was granted in August 2020.
21. Mr X told me they are not using the council transport as he prefers to drive his daughter as she cannot communicate and is not comfortable around other people. He receives a mileage allowance.

Analysis

22. The Council has accepted there was an eleven month delay in issuing a final EHC plan naming a specialist placement and that this was fault. There is no need for me to reinvestigate this; the only matter to be resolved is the level of the financial payment.
23. There is no suggestion the Council would have treated the application differently or not named a special school had it dealt with the request sooner. Only one school was found to be able to meet Mr X’s daughter’s needs.
24. The Ombudsman’s Guidance on Remedies suggests where there has been loss of education including a loss of specialist support that an EHC Plan would provide, a payment of £200 to £600 per month is appropriate depending on whether any education was available to the child, whether suitable support was available, and if a child has SEN.
25. The Council has offered £1400 for the delay in Mr X’s daughter accessing a specialist placement. I acknowledge that a mainstream placement was available and that, given the nature of her difficulties, a high level of adult support was provided. However, £1400 is below the minimum payment of £200 per month we would generally advise for loss of specialist education. Allowing for school holidays, a payment of £1800 (9 months x £200) would be more appropriate.
26. The time and trouble payment made by the Council to Mr X is in line with what we would recommend.
27. Mr X’s wife was able to manage school drop offs and pick ups until the change to secondary school in September 2019. As the school was 5 miles away from their home, the family was entitled to free home to school transport on distance grounds as free transport is available to all secondary pupils who live over three miles from their school. As Mr X’s daughter was later found eligible on disability grounds, it is likely she would also have qualified for specialist transport in September 2019 had the family applied for it.
28. Information about school transport would have been available to the family via the school admissions service, on the Council’s website and in the information provided about secondary transfer. It was not fault by the Council that the family did not apply.
29. The Council has offered free Council provided home to school transport after Mr X applied for it in 2020. However, Mr X prefers not to use this as he is not comfortable with his daughter travelling with adults she does not know. Even if school transport had been in place in September 2019, it is not certain the family would have used it. As I understand it Mr X instead is paid a mileage allowance.
30. Having taken into account all the relevant information, I am not persuaded that Mr X was required to move due to the Council’s delay in issuing the EHC plan or that payment of lost earnings is merited. The reason given for the move was to help with school transport, but Mr X was not required to provide transport to his daughter as the Council was legally obliged to provide this both on distance and disability grounds and therefore Mr X did not need to move for this purpose.

Agreed action

31. Within four weeks of my final decision the Council will pay Mr X’s daughter a further payment of £400 to acknowledge the impact of its delay on her education.
32. Within four weeks of my final decision the Council will review its EHC procedures to ensure that requests received are properly logged and responded to and that where there are delays the Council keeps parents informed.

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Final decision

33. I have completed my investigation. There was delay in issuing an EHC plan. A recommendation for a further financial payment is made.

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Investigator's decision on behalf of the Ombudsman