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North Northamptonshire Council (21 007 254)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 12 Apr 2022

The Ombudsman's final decision:

Summary: Mrs F complains the Council delayed issuing an Education Health and Care Plan for her daughter, J, causing a delay in starting secondary school and distress to Mrs F. The Council has accepted fault and apologised. It has now agreed to make a payment to Mrs F.

The complaint

  1. Mrs F complains the Council delayed issuing an Education Health and Care Plan for her daughter, J, causing a delay in starting secondary school.
  2. Mrs F says the delays caused significant anxiety and uncertainty to Clara and herself, and this impacted her mental health to the extent she had to seek support from mental health services.

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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. 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. (Local Government Act 1974, section 26(6)(a), as amended)
  3. 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 decision statement.
  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

  1. I spoke to Mrs F about her complaint and considered the information she sent, the Council's response to my enquiries and:
    • the Special Educational Needs and Disability Code of Practice January 2015 ("the Code")
    • the Special Educational Needs and Disability Regulations 2014 ("the Regulations")
  2. Mrs F 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

Special educational needs

  1. A child with special educational needs may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
  2. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
  3. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

EHC plan process

  1. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request. Parents can challenge a refusal to assess by appealing to the SEND Tribunal.
  2. If the council agrees to assess, it must seek information and advice on the child's needs, the provision required to meet those needs, and the outcomes expected to be achieved by the child. The Code says:
    • 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; and
    • 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).
  3. Councils must give the child's parent or the young person 15 days to comment on a draft EHC plan. The council then consults with the school(s), allowing 15 days to respond.
  4. If a parent requests a particular maintained school, this must be named in the EHC plan unless it would be unsuitable for the child or incompatible with the education of others.
  5. Parents may also request an independent school and councils must consider this request. Councils are not under a duty to name an independent school in a plan, but they must have regard to the general principle in the Education Act 1996 that children should be educated in accordance with their parents’ wishes, so long as this is compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure. Councils should also be satisfied that the school would admit the child. An independent school cannot be named unless it has been approved by the Secretary of State.

What happened

  1. Mrs F has mental health conditions. Mrs F’s daughter, J, has a diagnosis of autism and dyspraxia and suffers from anxiety. She was due to start secondary school in September 2021. Mrs F asked the Council to assess J’s EHC needs on 16 February 2021.
  2. On 8 April the Council refused to assess J. Mrs F challenged this and said she would appeal to the SEND Tribunal. The Council then decided to carry out the assessment.
  3. I have seen evidence that Mrs F chased the Council many times over the next four months. J also contacted the Council herself expressing her upset at not knowing which school she would be attending. On 5 August Mrs F sent the Council a pre-action protocol letter asking for a draft EHC plan by 12 August. The Council dealt with this as a complaint.
  4. The Council issued a draft EHC plan on 17 August. Mrs F commented on it and requested that School X, an independent specialist school for young people with autism, be named in the plan.
  5. The Council refused to consult with School X; it said it had to avoid unreasonable public expenditure and it considered that a local special school would be able to provide an appropriate education for J.
  6. The Council issued a final EHC plan which did not name a specific setting on 13 September. Mrs F challenged the decision not to consult School X and the Council issued a consultation to School X on 15 September.
  7. In response, Mr F told the Council that Mrs F’s mental health was at crisis point.
  8. The Council issued a further final EHC plan naming School X on 20 September. Mr F asked the Council to agree the funding as soon as possible, as Mrs F’s mental health had completely broken down. J was due to start at School X on 11 October, following a visit and some induction.
  9. The Council responded to Mrs F’s complaint on 10 October 2021. It accepted it had not met the statutory deadlines for issuing the EHC plan and apologised for this.

My findings

  1. Although the Council initially refused to assess J, once it had agreed to, the timescales in the Code and Regulations applied. This meant the final EHC plan should have been issued by 6 July 2021, 20 weeks after the request. The Council has accepted it missed this deadline; in response to my enquiries it said there was a miscalculation due to the refusal to assess. Mrs F says an officer had advised her of the correct dates, so the Council was aware.
  2. I also find it was fault for the Council to initially refuse to consult with School X. The Code says councils must consider parental requests for an independent school. In order to decide whether an independent school is to be named, the Council must know whether it would be able to admit the child. It follows it must consult with the school.
  3. These faults caused injustice to J and to Mrs F. They meant that J was unable to start secondary school at the start of term and lost out on education for about a school month. It also caused significant avoidable distress to Mrs F, who has mental health issues, as she had no certainty about what school J would be able to attend and had to chase the Council frequently. Mrs F told me she had to contact emergency mental health services in September 2021.
  4. 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. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
  5. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. We consider the impact on the child and take account of factors such as whether the period affected was a significant one in a child’s school career – for example, the transfer to secondary school.
  6. A remedy payment for distress is often a moderate sum of between £100 and £300, exceptionally, we may recommend more than this. When we assess distress, we consider the complainant’s individual circumstances, whether the person affected is vulnerable and affected by distress more severely than most people.

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Agreed action

  1. Within a month of my final decision, the Council has agreed to:
    • Apologise to Mrs F and pay her:
        1. £500 for J's educational benefit, to acknowledge the impact of the loss of one month’s education at the start of secondary school
        2. £500 to acknowledge the avoidable distress caused by fault
    • Remind staff of the statutory deadlines and the distressing impact on young people and parents of them being missed.

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Final decision

  1. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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