Summary: The complainant said the Council significantly delayed issuing her son’s Educational and Health Care Plan (EHCP) and failed to communicate with her throughout the process. The Council has accepted it was at fault and has agreed to remedy the injustice.

The complaint

1. The complainant, who I refer to as Mrs X, complains about a significant delay with issuing an EHCP for her son, who I refer to as Y, who is at the critical stage of his education. Mrs X says the Council’s failure to comply with the EHCP timescales undermined Y’s chances of succeeding with his GCSEs and might have a lasting impact on his educational future. She also raises the issue of unsatisfactory communication from the Special Educational Needs (SEN) team throughout the EHC process.

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What I have investigated

2. As the Council has already accepted its fault in the Stage Three complaint response to Mrs X’s complaint, I focused my investigation on finding out whether the remedies offered by the Council were appropriate.

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The Ombudsman’s role and powers

3. 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)
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)

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How I considered this complaint

5. I talked to Mrs X and considered the information and documents she provided.
6. I reviewed all the documents provided by the Council.
7. I considered the Ombudsman’s Guidance on Remedies (‘the Guidance’).
8. Mrs X and the Council had an opportunity to comment on my draft decision and I considered all the correspondence received.

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What I found

Legislation and guidance

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. In accordance with the Children and Families Act S.19 when discharging their duties for children and young people with SEN councils must have regard to:
• the views, wishes and feelings of the child or young person, and the child’s parents;
• the importance of the child or young person, and the child’s parents, participating as fully as possible in decisions, and being provided with the information and support necessary to enable participation in those decisions; and
• the need to support the child or young person, and the child’s parents, in order to facilitate the development of the child or young person and to help them achieve the best possible educational and other outcomes, preparing them effectively for adulthood.

What happened

Chronology

11. In March 2020 Mrs X requested an EHC assessment for Y. At the end of April 2020 the Council told Mrs X it would be carrying out the assessment. An Educational Psychologist (EP) assessed Y in June 2020 and at the end of August 2020 the Council sent a draft EHCP to Mrs X asking for her comments.
12. In mid-September 2020 the Council informed Mrs X there is a delay in finalising Y’s EHCP due to unavailability of an Occupational Therapist (OT) to observe Y at school and provide their advice for Y’s EHCP.
13. Following contact from Y’s school in April 2021, at the beginning of June 2021 the SEN case officer discussed the EHCP process with Mrs X. Mrs X asked for another copy of the draft EHCP for review. Only after three further emails she received copies of the appendices.
14. At the end of June 2021 Mrs X provided her comments to the draft EHCP and a few days later sent her complaint to the Council. Five days after her complaint the Council issued the final EHCP for Y.
15. Mrs X was not satisfied with the Council’s response to her complaint and escalated it to Stage Three of the complaint process. In its Stage Three response the Council accepted there was a delay in issuing an EHCP for Y and poor communication with Mrs X particularly between September 2020 and April 2021.
16. The Council offered Mrs X an apology and £2,000 for educational support for Y in the transition between KS4 and post-16 education to be paid to Y’s school as well as £300 distress payment for Mrs X. The Council also advised the review of educational services had already taken place. Following this review the Council recruited new staff, secured additional resources for the SEN team restructuring, introduced monthly review of the SEN services and put in place weekly data reporting on the EHCP timescales.

EHCP content and support at school

17. Social, Emotional and Mental Health needs as well as Sensory and Physical are the two main areas of Y’s difficulties. Y’s final EHCP specifies strategies and approaches to address these difficulties with no requirement identified for individual therapy sessions.
18. As part of her comments to the draft EHCP Mrs X recognised that even before issuing Y’s EHCP his school had been implementing various special educational provisions. She was not persuaded of the adequacy of some of them considering Y’s age and effectiveness of the others.

Analysis

19. The Council accepted it was at fault for the delay in issuing Y’s final EHCP and unsatisfactory communication with Mrs X throughout the EHCP process.
20. The main injustice caused by the lack of the final EHCP is the delay in providing Mrs X with her appeal rights if she wished to contest the content of Y’s EHCP or/and suitability of his placement.
21. Besides Mrs X experienced distress and frustration caused by the lack of satisfactory support and advice from the Council. Prolonged lack of communication also meant uncertainty for her and her son about Y’s educational future.
22. Reviewing the Council’s proposed remedies I consider they are in line with our Guidance. However, the £2,000 to acknowledge the disadvantages caused to Y by the delay in issuing his EHCP should be paid to Mrs X rather than Y’s school. This is because the school should be supporting Y’s SEN through its notional SEN budget and if there is any more funding needed to deliver special educational provisions identified in Section F of Y’s EHCP, the Council is under duty to secure it.
23. At this stage, to ensure Y has extra support both in preparation for his GCSEs and transition to a post-16 placement, Mrs X is best placed to use additional funds by making arrangements for individual tutoring, OT advice or arranging support for Y’s mental health.
24. When accepting the Council’s offer of a payment of £2,000 I considered:
• length of the delay in issuing Y’s final EHCP – 10 months; and
• impact of the lack of EHCP on Y’s education.
25. To establish impact of the delay on Y’s education I took account of the following circumstances:
• Y attended his school and received education;
• in the final EHCP Y’s current mainstream school was named in Section I and no appeal followed;
• the school was continuously supporting Y’s SEN within its SEN support arrangements; and
• there are no individual therapy sessions identified in Section F of Y’s EHCP, which might require extra funding over SEN notional budget.

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Agreed action

26. To remedy the injustice caused by the faults identified, the Council has agreed to complete within the next four weeks:
• Pay Mrs X £2,000 to acknowledge the disadvantage caused to Y by the delay in issuing a final EHCP and inadequate support and advice from the Council.
• Provide evidence of regular monitoring of its EHCP timescales.
• Remind relevant staff of the importance of issuing EHC plans within the timescales set out in the SEN code of practice.
27. We accept the Council’s offer of a payment of £300 to acknowledge the distress and uncertainty caused for Y and Mrs X by the faults identified. This payment should be made to Mrs X within the next four weeks.

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Final decision

28. The Council has accepted its fault and so I uphold Mrs X’s complaint. This investigation is now complete as the Council offered some suitable actions to remedy injustice caused to Mrs X and her son and accepted my additional recommendations.

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Investigator's decision on behalf of the Ombudsman