The Ombudsman's final decision:
Summary: The complainant (Ms X), who is also her daughter’s (A) representative, says the Council’s delay in supporting A through an Education and Health Care Plan (EHCP) affected her school attendance and General Certificate of Secondary Education (GCSE) grades. There was a delay in issuing A’s EHCP, which is fault. However, the fault did not cause A any injustice.
- Ms X says despite professional recommendations the Council delayed issuing an EHCP for A. Ms X believes the lack of support affected A’s school attendance and GCSE grades. She also raises the issue of the Free School Meals (FSMs) lost by A due to her irregular attendance at school.
What I have investigated
- I have investigated whether there was a delay in issuing an EHCP for A following Ms X’s request for an EHC assessment in February 2020.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I considered the information Ms X provided.
- I made enquiries with the Council and considered the information and document provided by the Council.
- Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments and additional documents received before making a final decision.
- 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.
What I found
Legislation and Guidance
- 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 Special Educational Needs (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.
- There is a right of appeal to the Special Educational Needs and Disabilities (SEND) Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
- In February 2020 Ms X asked for an EHC assessment for A for the second time. The Council received information from A’s school. The school advised A received 1:1 support funded by the school’s SEN notional budget. She was responding well to positive reinforcement and making academic progress.
- In the beginning of April 2020 the Council decided not to carry out an EHC assessment for A. The Council confirmed it will monitor A’s progress with the targeted SEN provisions at school.
- In the beginning of June 2020 a Mediation Service told the Council Ms X asked for a mediation. This coincided with the first child protection conference which was taking place for A and her siblings. At this point the Council agreed to carry out an EHC assessment for A.
- In October 2020 Ms X asked for a delay in completing an EHC plan for A anticipating the imminent Adult Social Care (ASC) advice. The Council refused this request, telling Ms X it would amend the plan once the ASC advice was completed.
- The Council issued A’s final EHCP in the second part of October 2020.
- In the academic year 2019-2020 A’s attendance at school was 70.66%.
- A’s attendance at school in the academic year 2020-2021 was 58.10%. From September to December 2020 every Wednesday A had work experience. Excluding the days A did work experience, she was absent from her school:
- in September 2020 - 8 days out of 18;
- in October 2020 - 6 days out of 10;
- in November 2020 – 11 days out of 15;
- in December 2020 – 7 days out of 10;
- in January 2021 – 14 days out of 20;
- in February 2021 – 14 days out of 15;
- Following Ms X’s request for A’s EHC assessment in February 2020, the Council had 20 weeks to issue A’s EHCP. The Council completed A’s EHCP in October 2020, rather than in July 2020. This was three months delay and is fault.
- To find out potential impact this delay might have had on A, I considered:
- Timescales of the delay in relation to the academic year;
- A’s attendance figures before and after issuing her EHCP;
- Support available for A through the school’s SEND notional budget before issuing her EHCP;
- A’s GCSEs grades before and after issuing her EHCP;
Impact of the delay on A
- One and a half out of three months of the delay fell during summer holidays. All special educational provisions (SEP) identified for A in her EHCP were to be delivered at school and during term times. This means the delivery of any provisions introduced by A’s EHCP were delayed by one and a half months, which reduces potential injustice caused to her by the delay.
- The evidence shows A’s attendance rate in 2019 – 2020 was higher than in 2020-2021. Therefore, there was no improvement of A’s attendance at school from November 2020, following issuing the final EHCP. On the balance of probabilities, I consider the delay therefore had a minimal impact on A as it is likely that even if the EHCP had been issued on time, the outcome for A would have been the same.
- Thus, as there does not seem a connection between A’s school attendance and issuing an EHCP for her, A’s missing FSMs is unlikely to be a result of the absence of the EHCP.
- A few months before the Council issued A’s EHCP, the school expressed its confidence in the support offered to A. It also confirmed A was making academic progress and responded well to positive reinforcement. A had access to individual support when she needed it. Evidence shows Ms X was satisfied with school’s support for A and how well the staff knew her.
- Further, the analysis of SEP included in A’s EHCP and the school’s support available for A before its issuing, leads to the conclusion the impact on A of the absence of her EHCP in the first few weeks of her Year 12 was, on balance, minimal.
- When comparing A’s GCSE grades from June 2020 and June 2021, there is a mixed result. This is because while A’s English grade declined, her Maths grade improved. This could suggest A’s EHC plan has had some impact on her educational progress. However, given the delay in issuing the EHCP was effectively only one and a half months, I do not consider this to be length of time that is likely to have a significant impact on A’s educational progress. Therefore, on balance, I do not consider the delay caused A any injustice.
- For the reasons explained in the paragraphs above, the delay of three months, one and a half of it falling in the summer holidays, is unlikely to have caused A any injustice.
Impact of the delay on Ms X
- Before the Council finalised A’s EHCP in October 2020, Ms X asked to suspend issuing the final plan till she received the ASC advice. Although the Council did not grant this request, it suggests Ms X did not consider a short delay detrimental to A.
- Ms A did not appeal A’s final EHCP issued in October 2020, so it would be irrelevant to consider possible injustice caused by the consequential delay of her appeal rights.
- At this stage there is no evidence the Council’s delay in issuing A’s EHCP caused Ms X injustice.
- I have completed my investigation and uphold Ms X’s complaint. There was fault by the Council, however, it did not cause any injustice to A or Ms X which would need the Council to take any action.
Parts of the complaint that I did not investigate
- I did not investigate the part of this complaint relating to Ms X’s first request for an EHC assessment for her daughter which was refused by the Council. This is because Ms X could have appealed the Council’s decision. Ms X was helped and supported when requesting an EHC assessment, so there are no good reasons to exercise our discretion and consider this part of the complaint.
Investigator's decision on behalf of the Ombudsman