Summary: Mrs M complains about delay issuing her son B’s Education, Health and Care (EHC) Plan. The Council took four months too long, and the delay meant B was unable to start his secondary education at his new school in September 2021. The Council has agreed a remedy.

The complaint

1. Mrs M complains about delay issuing her son B’s Education, Health and Care (EHC) Plan. She is unhappy with the Council’s response to her complaint.

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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)

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How I considered this complaint

4. I have considered:
• information provided by Mrs M; and
• information provided by the Council.
5. I invited Ms M and the Council to comment on my draft decision.

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What I found

6. Mrs M’s son, B, was a pupil at an independent school.
7. On 15 July 2020, Mrs M asked the Council to assess B’s special educational needs. The Council agreed to issue an Education, Health and Care (EHC) Plan.
8. Unhappy with progress, Mrs M asked the Council to issue B’s final EHC Plan in May 2021. The Council issued the final Plan on 7 May 2021. The Council named B’s current school in his Plan against Mrs M’s wishes (and the wishes of the school). Mrs M appealed to the Tribunal.
9. Mrs M and the Council reached an agreement before the hearing and the Tribunal issued a Consent Order on 24 November 2021. The new Plan named an Independent Special School.

Mrs M’s complaint to the Council

10. In May 2021, Mrs M complained to the Council about delay issuing B’s EHC Plan.
11. The Council responded by letter dated 27 May 2021. The Council apologised for the delay and offered £150 for Mrs M’s time and trouble. The Council explained the impact of the pandemic on the ability of its Educational Psychology Service to provide advice needed for EHC needs assessments. The Council explained its Educational Psychology service was understaffed and there was also a national shortage of Educational Psychologists. The Council had been unable to recruit staff to fill vacancies and had taken on locum staff to tackle the backlog created by the pandemic.
12. Mrs M was unhappy with the Council’s response. She does not consider the payment of £150 recognises the disruption to B’s education and the stress caused by the delays. Mrs M says that B’s transition to secondary school was disrupted by the delay. Mrs M asked the Council to consider her complaint at the second stage of its complaints process. The Council declined, so Mrs M complained to the Ombudsman.

Education, Health and Care Plans: the law

13. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
14. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation, regulations and Government guidance.
15. The Council must normally complete the process and issue a Plan within 20 weeks. The Council has a maximum of six weeks to decide whether to undertake a special educational needs assessment. If it decides to issue a Plan, it must do so within 20 weeks of the request to assess. (The Special Educational Needs and Disability Regulations 2014)
16. Between 1 May 2020 and 25 September 2020, emergency Coronavirus legislation was in force. This meant that if the Council could not meet the usual time limits for a reason relating to the incidence or transmission of coronavirus (COVID-19), the time limits did not apply. (The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020)
17. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s Education, Health and Care Plan.

Consideration

18. Mrs M applied for an assessment of B’s special educational needs in good time for the Council to make any necessary arrangements before his transition to secondary education in September 2021.
19. The Council decided to assess B’s special educational needs on 29 September 2020. This was almost eleven weeks after Mrs M’s request. The Council did not meet the six-week timescale in the 2014 Regulations. However, the emergency coronavirus regulations were in force and the usual timescales did not necessarily apply. Further, Mrs M’s request coincided with the school summer holidays.
20. However, once the Council decided to assess B’s special educational needs, the emergency coronavirus regulations were no longer in force. The Council should have issued his Plan within 14 weeks of this decision, the timescale in the 2014 Regulations.
21. Taking all of these factors into account, the Council should have issued B’s EHC Plan by January 2021. The Council issued B’s plan in May 2021, approximately four months late.
22. Mrs M appealed the Plan to the Tribunal. Delay by the Council issuing B’s plan delayed Mrs M’s right of appeal. However, Mrs M and the Council reached an agreement without the need for a hearing and the Council named Mrs M’s chosen school.
23. Mrs M believes B could have started at his new school in September 2021, at the beginning of Year 7, if the Council had not delayed issuing his EHC Plan. While Mrs M may still have had to appeal, it seems more likely than not that B could have started at the school in September at the beginning of Year 7 if the Council had not delayed issuing his EHC Plan.
24. The delay by the Council was fault, and the injustice this caused was to delay B’s transfer to his new school for the start of his secondary education.

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Agreed action

25. We have published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
26. Where fault by a Council has caused a child to miss education, or not receive suitable education, we may recommend a symbolic payment of between £200 and £600 per month. We take account of any education the child received, without some or all of the support needed by their Plan, the severity of the child’s special educational needs, whether any provision can remedy any of the lost education, and whether the period affected was a significant one.
27. B should have received his EHC Plan four months sooner. Significantly, this would have been in time for his transition to secondary education. B moved from an independent mainstream school to an independent special school. This was a significant transition. B was unable to start his new school at the beginning of the school year.
28. We cannot recommend a remedy for the period between the Council issuing the EHC Plan, when Mrs M’s right of appeal arose, and the Tribunal’s decision. The Ombudsman cannot consider complaint about matters that are subject to an appeal.
29. The Council has already apologised for the delay and offered Mrs M £150 for her time and trouble. In addition, I recommended the Council make a symbolic payment of £2,000 to recognise the impact of the delay on B’s education and the additional stress the delay created for the family. I recommended the Council makes the payment within one month of my final decision. The Council accepted my recommendation.
30. The Council has already taken steps to address the problems caused by the shortage of Educational Psychologists, so I have not made further recommendations.

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Final decision

31. I have completed my investigation as the Council accepts my recommendations.

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Investigator's decision on behalf of the Ombudsman