Summary: The Council was at fault for delaying in finalising Mrs X’s son’s Education, Health and Care Plan and putting in place the provision listed in the plan. This caused injustice as Mrs X’s son missed out on receiving the provision he was entitled to. The Council has agreed to apologise and make a payment to Mrs X for the benefit of her son’s education.

The complaint

1. Mrs X complains the Council delayed in assessing her son for an Education, Health and Care Plan and then did not provide him with the provision listed in the plan.

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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 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)
4. 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. Where someone has appealed we cannot investigate the matter under appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this statement.

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How I considered this complaint

6. As part of this investigation, I considered the information provided by Mrs X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Mrs X and the Council for comments.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Law and guidance

8. 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.
9. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
10. There are some circumstances in which a council may not be required to comply with these timescales. These include where a council asks for advice from a school when it is closed for the summer holidays.
11. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Covid 19 and education

12. When England entered a national lockdown on 23 March 2020 schools were closed to the vast majority of children. They remained open only to vulnerable children, and children of specified key workers.
13. Children with EHC Plans were included in the Government’s definition of potentially vulnerable children. Councils were advised to carry out risk assessments, to decide whether a child with an EHC Plan would be safer in a school setting. The aim of the measure was to ensure the child’s safety, rather than to ensure they received their normal educational entitlements.
14. On 30 April 2020 the Government issued new guidance entitled, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’. This said: “the notice does not absolve local authorities …of their responsibilities under section 42: rather they must use their ‘reasonable endeavours’ to secure or arrange the provision. This means that local authorities and health bodies must consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances during the notice period”.
15. The guidance noted it may be difficult to provide all elements of support in an EHC Plan, for example where the young person is not attending their education placement or services are reduced through illness or other COVID-19 related restrictions.
16. In deciding what provision can and cannot be made the council had to consider:
• specific local circumstances and workforce capacity;
• the needs and specific circumstances of the child or young person; and
• the views of the child, young person and their parents about what may be appropriate.
17. If it was not possible to arrange or secure full provision detailed in an EHC Plan, factors to be considered included the availability of those who should deliver what is needed and whether anything could be done differently to deliver provision.
18. The guidance provided examples of the types of alternative arrangements that may be made including: moving to a part-time timetable; change in placement to another school; reduced class sizes; specialist teachers providing advice and support to parents; and widening the use of personal budgets or direct payments to enable purchase of equipment to support home learning.
19. The council should keep a record of the provision it decides it must secure or arrange. It should then:
• confirm to the parents or young person what it has decided to do and explain why the provision differs from what is set out in the EHC plan; and
• keep decisions under review, with an early review if necessary if the child or young person’s needs change.

What happened

20. In June 2019 the Council received a request to carry out an EHC assessment of Mrs X’s son Y. Y is deaf, and this has impacted on his speech, language, communication and social interaction.
21. In July 2019 the Council’s multi-agency panel considered the request to carry out an EHC assessment of Y. The panel decided not to carry out an assessment and was of the view it would be beneficial to first explore Early Years Inclusion Funding as Y was at nursery.
22. In September 2019 Mrs X appealed the Council’s decision not to carry out an EHC assessment to the SEND Tribunal. The Council missed its deadline to provide evidence to the SEND Tribunal but then decided it would assess Y and provided a statement to the SEND Tribunal on 13 November 2019 stating this.
23. The Council wrote to Mrs X on 15 November 2019 and said Y’s assessment had begun. The Council also set out a timeline for the assessment. This said the Council would issue Y’s final EHCP by 20 February 2020.
24. The Council provided Mrs X with Y’s draft EHCP in January 2020. Mrs X responded to the draft EHCP the day after receiving it and said there were lots of errors.
25. The Council issued Y’s final EHCP on 27 March 2020, however Mrs X said she did not receive a copy of this. At this time restrictions came into force because of the Covid 19 lockdown. As a result, Y’s nursery closed.
26. Y’s EHCP specified that a Communication Support Worker trained to level 3 British Sign Language (BSL) would provide him with the provision set out in section F of the EHCP. The nursery did not have anyone who could fulfil this role so needed to recruit for this position.
27. On 2 June 2020, Y’s nursery re-opened. The Council said at this stage it provided funding to the nursery to provide additional staff to support Y. The Council said it believed the nursery employed a deaf professional to support Y while it recruited for a Communication Support Worker. Mrs X disputes this and said a deaf professional was appointed by the sports complex where the nursery is based, however the nursery told Mrs X this professional was only coming into the nursery once per week for one hour as they worked for the sports complex.
28. Mrs X contacted the Council in June 2020 as she had not received a copy of Y’s EHCP. The Council sent her a copy of the final plan.
29. The recruitment for a Community Support Worker to support Y started in August 2020 and the position was not filled until the end of October 2020. Mrs X said Y started working with the Community Support Worker from 3 November 2020.

Mrs X’s complaint

30. On 15 September 2020 Mrs X complained to the Council that it had delayed in providing Y’s EHCP. She also complained Y was not receiving support from a Communication Support worker trained to level 3 BSL as no one had been recruited.
31. The Council provided its stage one response on 12 October 2020. The Council said there had been a delay in appointing a Communication Support Worker for Y because the candidates who were assessed were not suitable. The Council said Y was being supported with an interim solution. The Council said it delayed issuing Y’s EHCP by five weeks and this was due to Mrs X not wishing to finalise the plan until all considerations for changes had been considered which included seeking further clarification from professionals.
32. Mrs X asked the Council to consider her complaint at stage two on 29 October 2020. Ms X said:
• She did not receive a copy of Y’s EHCP until June 2020 not March 2020. Ms X also said Y’s nursery only received a copy of his EHCP in June 2020 and therefore did not start to advertise the job for a Communication Support Worker until August 2020.
• She was unhappy with the Council’s initial reason to refuse to assess Y due to his age.
33. The Council provided its final response on 20 May 2021. The Council used an Independent Officer to carry out the stage two review. The Independent Officer said:
• The EHCP process went over 20 weeks for reasons not included in the exemptions. The Council made correct provisions to send the EHCP on 27 March 2021, but its SEN business admin team failed to obtain Mrs X’s email address that they had been using to communicate. The SEN business admin team also asked Y’s nursery to send the EHCP to Mrs X which was the wrong course of action and resulted in Mrs X not getting a copy of the EHCP until June 2020.
• The Council did send Y’s EHCP to his nursery, but the email address was out of action. Therefore no one from the nursery responded to the Council to ask for the password to open the EHCP document. This email address was not rectified until IT could visit but this was delayed due to the 2020 lockdown.
• The recruitment process for the Communication Support Worker did not go smoothly but the nursery took the lead in the recruitment.
34. The Independent Officer recommended that all EHCP’s must be issued within 20 weeks, all delays in issuing EHCP’s should be communicated to parents and this message should be reinforced to Council staff. In addition the Council should reinforce the importance of a minute taker in important meetings.
35. Mrs X remained dissatisfied so complained to the Ombudsman.

Analysis

36. The Council was at fault for delaying in issuing Y’s EHCP. The Council should have issued the final plan by 20 February 2020 but did not do so until 27 March 2020. The reason the Council provided for the delay did not fall within one of the circumstances where EHCP timescales could be extended.
37. The Council did not send a copy of the EHCP to Mrs X until June 2020 as its SEN business admin team did not obtain Mrs X’s correct email address. In addition the Council asked the nursery to send a copy of the EHCP to Mrs X. This is also fault. The Council has rightly acknowledged this in its complaint response to Mrs X.
38. Y’s nursery also did not receive a copy of his EHCP until June 2020 as the Council sent this to an email address which was not in use. As the nursery did not reply to the Council asking for the password to open the EHCP document the Council should have followed this up with the nursery.
39. Had Y’s EHCP been finalised by 20 February 2020 and sent to the nursery before the lockdown restrictions happened, steps could have been taken to start the process of recruiting the Communication Support Worker needed to help deliver the SEN provision in the EHCP sooner.
40. Mrs X also complains there was a delay in putting in place provision in Y’s EHCP as the Communication Support Worker was not in post until early November 2020. While Y should have started to receive his SEN provision when the EHCP was finalised in March 2020, Covid 19 lockdown restrictions came into force. This meant Y’s nursery closed.
41. I do not consider it was reasonable for the Council to put in place the provision in Y’s EHCP at this time as much of this was dependent on him being in the nursery school setting. Once Y’s nursery opened in June 2020 the Council could have started the process of arranging Y’s SEN provision, however it was not until November 2020 that the Communication Support Worker was in post which was key to providing Y’s SEN provision.
42. The Council has said interim measures were put in place as the nursery hired someone to assist Y with BSL three times per week. However I have not seen evidence of this. In addition, Mrs X said the staff member was not employed by the nursery but by the sports complex the nursery was located at and only visited Y once per week. I am therefore satisfied Y did not receive the provision set out in his EHCP and has fallen behind.
43. The Council was also at fault in how it handled Mrs X’s complaint. At Stage two the Council can allow up to 65 working days to respond to a complaint. This happens when it uses an independent officer to consider the complaint. In Mrs X’s case the Council decided to use an independent officer to carry out the stage two review, however this took 165 working days.

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Agreed action

44. Within one month of my final decision, the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Apologise to Mrs X for the delays in finalising Y’s EHCP, putting in place SEN provision and completing the stage two complaint review.
• Pay Mrs X £1,200 for the benefit of Y’s education for the lost SEN provision between June 2020 and October 2020. In coming to this figure have considered the Ombudsman’s guidance on remedies.

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Final decision

45. I have completed my investigation and found the Council was at fault for delaying in finalising Y’s EHCP and putting in place SEN provision. This caused Y injustice as he missed out on receiving SEN provision. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman