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Northamptonshire County Council (20 011 542)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 06 Dec 2021

The Ombudsman's final decision:

Summary: The Council was at fault because there was delay of 2 months in issuing an Education, Health and Care plan. The delay caused stress and uncertainty for Mrs X, but her son was already receiving provision through high needs funding in school. To remedy the injustice, the Council will apologise and make the payment set out in this statement.

The complaint

  1. The complainant, Mrs X, complains there was delay in issuing her son’s EHC (Education, Health and Care) plan. She also complains that the provisions in the EHC plan were not put in place from March 2019 while she appealed to the SEN tribunal.
  2. Mrs X complains that her son has missed Education.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  3. The SEND tribunal considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  5. Complaints about EHC plans may be within our jurisdiction depending on the complaint. We can investigate a complaint about an EHC plan if:
    • The action relates to an administrative function of the council
    • The action is taken by or on behalf of the council
    • The action is not excluded by the provisions in paragraphs 4 or 6.
  6. 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 a copy of the final decision statement of this complaint with Ofsted.
  7. 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

  1. I read the papers put in by Mrs X and discussed the complaint with her.
  2. I considered the Council’s comments about the complaint and any supporting documents it provided.
  3. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. A child with special educational needs 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 tribunal can do this.
  1. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
  2. The Council is responsible for making sure that arrangements specified in the EHC plan 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.

EHC plan

Key facts

  1. Mrs X applied for an EHC needs assessment on 6 November 2017. The Council made a decision not to assess on 6 December 2017. After mediation, Mrs X appealed to the SEND tribunal. The tribunal directed the Council to complete an EHC assessment.
  2. The Council started the EHC assessment on 11 April 2018. It decided not to issue an EHC plan on 6 June 2018. Mrs X appealed against this decision to the SEND tribunal and the tribunal directed the Council to issue an EHC plan on 2 November 2018.
  3. The draft EHC plan was sent to Mrs X on 8 January 2019. The Council issued the final EHC plan on 18 March 2019.
  4. Mrs X supplied further information to the Council in May 2019 and appealed to the SEND tribunal about the content of the EHC plan. The tribunal made its decision in January 2020 and the Council issued the final EHC plan on 28 January 2020.

My analysis

Delay in issuing final EHC plan after SEN tribunal

  1. The Special Educational Needs and Disability Regulations 2014 say:
    • If a council refuses to carry out an EHC assessment but then the SEND tribunal orders them to do so, then they must either decide not to issue an EHC plan within 10 weeks or issue a final EHC plan within 14 weeks of the order. (Regulation 44(2)(b))
    • If a council carries out an EHC needs assessment but refuses to issue an EHC plan and is then ordered to issue a plan, they must issue a draft plan within 5 weeks and final plan within 11 weeks of the date of the order. (Regulation 44(2)(c))
  2. The Council took 9 weeks to issue the draft EHC plan, a delay of 4 weeks.
  3. The final EHC plan was issued on 18 March 2019. The Council took 19 weeks to issue the final EHC plan, delay of 8 weeks (this includes the 4 week delay to issue the draft).
  4. I find fault, in that there was 2 months delay in issuing the final EHC plan after the SEND tribunal direction.
  5. Mrs X says she provided new evidence to the Council in May 2019. This diagnosis, she says, added significant need for speech and language provision. She asked for this to be added to the EHC plan, which the Council declined. The Council told her by letter that she could put in reports at the next review in March 2020. Mrs X appealed to the SEN tribunal in May 2019.
  6. I note Mrs X’s complaints on this point. However, she did appeal against sections B and F of the final EHC plan. In January 2020 the tribunal directed that changes were made to the plan. So, as Mrs X appealed to a tribunal to get the provisions she wanted, which included the information of May 2019, this part of her complaint is outside the Ombudsman’s jurisdiction.
  7. I understand Mrs X‘s concerns that at every step she had to appeal against the Council’s decisions and that the SEN tribunal upheld her appeals. Mrs X has explained that this made the process longer than it needed to be and cost her money and time. But as Mrs X challenged the decisions she disagreed with at the SEN tribunal, the Ombudsman cannot look at her complaint on this point as she, quite rightly, used the alternative remedy available.

Educational Provision after EHC plan issued

  1. The EHC plan was issued in March 2019. I have looked at the content of the EHC plan of March 2019 which recommends 25 hours support in the classroom. I understand that Mrs X’s son was already receiving similar provision through high needs funding provided to the school.
  2. The Council has said that it is confident Mrs X’s son was receiving this provision. I have no evidence to support or contradict this. I have seen no written evidence that Mrs X complained to the Council at the time that her son was not receiving the 25 hours support. Given that Mrs X’s son was already receiving this provision before the EHC plan was granted in March 2019 it is likely, on the balance of probabilities, that he was receiving this provision in school. However, if Mrs X has evidence to show that she complained to the Council at the time that her son was not receiving the 25 hours per week support, I can consider this.
  3. The new EHC plan was put in place in January 2020 which specified 32.5 hours of support in the classroom and at breaktimes. Mrs X’s son did not return to school in September 2020. The Council’s notes say that this was because of fears about COVID.
  4. In January 2021 the Council started the annual review process. Mrs X asked for a further Educational Psychology assessment and said she felt her son needed a specialist placement.
  5. In April 2021 the Council wrote to Mrs X to confirm that no adjustments were required to the EHC plan. Mrs X’s son was attending school in July 2021 and Mrs X asked for an emergency annual review in September 2021.
  6. Again, I have no written evidence that Mrs X has complained to the Council that her son was not receiving the 32.5 hours support. I am aware that she has since raised concerns about the placement but I cannot see evidence that she has told the Council that her son was not receiving the 32.5 hours support. If Mrs X has evidence to support that she told the Council her son was not receiving the 32.5 hours support then I can consider this.
  7. On this part of the complaint there is no evidence to find fault with the Council, as I cannot see that the Council was told by Mrs X that she was concerned that her son was not receiving the provision in the EHC plan. I do accept that she raised concerns about the EHC plan itself, but more about its content than the failure to put in place the specified provision.

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Agreed action

  1. The Council will, within one month of my final decision:
    • Apologise to Mrs X and pay her £250 to reflect her stress and time and trouble complaining due to the 2 months delay in issuing the EHC plan.

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Final decision

  1. I have completed my investigation of this complaint. This complaint is upheld, as there was delay by the Council.

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Investigator's decision on behalf of the Ombudsman

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