Summary: Ms X complained the Council delayed in completing an Education, Health and Care Plan (EHCP) assessment for her daughter, Y. Ms X said this caused considerable distress and uncertainty and meant she had to fund provision herself due to delays. We find fault with the Council for avoidable delays. We recommend the Council apologise to Ms X, make a payment to recognise the time and trouble it caused her, and make a payment to recognise four months of missed provision for Y.

The complaint

1. Ms X complains the Council failed to meet statutory deadlines to complete an EHCP assessment for Y. Ms X says this created a delay in transitioning from school to Education Otherwise Than At School (EOTAS) and meant she had to fund some provision herself. Ms X says this has caused Y considerable distress and uncertainty.

Back to top

What I have and have not investigated

2. I have investigated the delays in completing Y’s EHCP assessment.
3. I have not considered any matters that were linked to Ms X’s appeal to the SEND Tribunal, because this is outside our jurisdiction.

Back to top

The Ombudsman’s role and powers

4. 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)
5. The SEND tribunal is a tribunal that considers special educational needs. We cannot investigate a complaint when someone has appealed to a tribunal. However, we may investigate whether there may have been a delay in the process which led to the tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
7. 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.
8. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

9. I spoke to Ms X about her complaint and considered information she provided. I also considered information received from the Council.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Education, health and care plans

11. A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can so this.
12. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (the Code) sets out the process for carrying out Education and Health Care (EHC) assessments and producing EHCPs. 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 EHCPs “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 EHCP is issued must take no more than 20 weeks.
• As part of the assessment, councils must gather advice from relevant professionals. This includes psychological advice and information from an Educational Psychologist (EP).
13. The Code says councils must review EHCPs at least annually.
14. Councils should also tell parents they have a right to appeal the final EHCP to the SEND Tribunal.

Ombudsman focus reports

15. In 2019, the Ombudsman published a document named Not Going to plan? Education, Health and Care Plans two years on. This report was written to highlight the experiences of many complainants and what we expect to see of Councils.
16. This document explains we expect councils, as the lead agency in the EHCP process, to have appropriate commissioning and partnership arrangements in place to allow SEND officers to obtain advice for EHCPs in a timely way and to have mechanisms to address problems that arise.

What happened

17. Y attended primary school until March 2021, when she was in year five. At this point Ms X decided to take Y out of school as she had struggled with returning to school following the Covid-19 lockdowns.
18. Prior to removing Y from school, on 8 February 2021, Ms X asked the Council to carry out an EHC assessment for her. The Council wrote to Ms X on 16 February to invite her to a decision-making meeting to discuss the EHC assessment request and the next steps. This took place on 16 March.
19. During the decision-making meeting, the Council confirmed it would carry out an EHC assessment on 19 March.
20. Following the assessment meeting, the Council wrote to Ms X on 21 April to explain it was experiencing delays in getting EP advice to complete the EHC assessment.
21. The 20-week deadline for completing the assessment passed on 5 July but the Council did not meet this deadline as it still had not obtained EP advice. That day, Ms X complained to the Council as it had missed the statutory deadline to complete Y’s EHC assessment.
22. The Council responded to Ms X’s complaint on 8 July. It apologised for the delays and explained it had developed a backlog of cases during the Covid-19 pandemic and was still working through this. The Council said it had been struggling to recruit the EPs it needed but would allocate an agency EP to Y’s case in the next few weeks. The Council said it hoped to be able to decide on Y’s case by the end of August and offered to pay Ms X £150 in recognition of the time and trouble she had been caused in having to raise her complaint.
23. On 12 August, Ms X asked the Council to review her complaint. She said its original response did not address her concerns and left the situation unresolved.
24. The Council responded to Ms X that same day. It explained it had received the EP advice the previous day and it intended to make a decision on issuing an EHCP by the end of the month. The Council explained Ms X’s complaint had been upheld and its offer of £150 still stood. The Council explained if Ms X remained unhappy, she could bring her complaint to the Ombudsman.
25. On 3 September, the Council issued a draft EHCP.
26. The psychotherapist who was working with Y asked for an extension until 1 October to have a chance to review the EHCP draft as they had not yet seen it.
27. Ms X attempted to set meetings with the Council to discuss the EOTAS request and the EHCP amendments but could not find a time that worked.
28. On Ms X’s request, the Council issued a final EHCP for Y on 10 December. While the Council and Ms X had not agreed on the content of the EHCP, the Council has said it agreed to issue a final plan at this point so Ms X could use her right to appeal without further delay.
29. The EHCP provided for:
• A personalised EOTAS package to be overseen by a teacher in charge of EOTAS
• 1:1 support twice a week for emotional support intervention sessions
• 1:1 support twice a week for social skills intervention sessions
• 1:1 support with programmes of work aimed at supporting Y to signal when she was feeling anxious or upset
• 1:1 adult facilitated structured and unstructured learning and social opportunities with Y’s peers
• Daily planned opportunities to work in individual and small group situations, including online
• A flexible, tailored, bespoke curriculum with learning to take place 1:1 and/or in a small group environment
30. Ms X appealed the content of Y’s EHCP as she felt it was vague and did not properly specify what provision Y would receive. Ms X also felt the provision set out in the EHCP did not fully cover the package of education she had been funding for Y since March 2021.
31. Ms X brought her complaint to the Ombudsman in July 2022.
32. In response to our enquiries the Council referenced a recent public report issued by the Ombudsman (reference number 21 005 558). This report found the Council had taken appropriate steps to reduce the backlog of EP assessments but asked it to review cases where people had already been affected by the delays to check if additional remedies were due.
33. Having considered this report, the Council reviewed Ms X’s complaint and has recognised there was a delay of four months, equating to one full school term, in issuing Y’s EHCP. It has said it intends to issue a formal apology to Ms X, make a payment of £450 per month in recognition of the delay, totalling £1,800, and increase its offer of £150 to £250 to recognise the avoidable distress and time and trouble caused to Ms X.
34. When I spoke to Ms X she said she managed to get a working plan in place for her daughter but the Council only agreed to fund part of this and she incurred costs as a result. Ms X said none of the working plan is on the EHCP, which she feels is incredibly vague and could relate to anybody.
35. In comments on a draft of this decision Ms X said:
• The provision in the plan is not the provision that was agreed in meetings with the Council and there was a reduction in the number of minutes for certain aspects of it which meant she was not able to fully claim costs back.
• Costs started from March 2021, ran until a package was finally issued in March 2022, and only started to be paid in June 2022. The package is not enough money and did not cover the provision of resources needed.
• The EOTAS package should not just be considered as term-time because it involves child-led education and a lot of social and emotional support that does not fall within termtime.
• Ms X feels the distress, time and trouble payment does not truly reflect the time, energy and impact on her. She says it took four months to pay anything, then payments were delayed and there are still outstanding payment issues. Ms X feels the remedy needs to account for 18 months of stress and should be between £3,000 and £4,125

Analysis

36. The Council had until 5 July 2021 to complete Y’s EHCP assessment and issue a final EHCP but it missed this deadline. The Council did not issue a final EHCP until 10 December 2021. This is fault. Because of this, Ms X had to continue funding Y’s package of education herself for the autumn term and Ms X’s appeal rights were delayed, causing her uncertainty and meaning Y missed provision. This is injustice.
37. In response to another complaint, referenced above, the Council provided the Ombudsman with an explanation of the action it has taken to reduce the backlog and ensure it meets statutory time limits going forward. This includes recruiting additional SEN casework officers, using agency EPs, and advertising to fill vacant EP positions within the Council. This is suitable action to prevent recurrence.
38. However, the Council has now offered to pay Ms X £1,800 in recognition of the fact Y had missed the provision in her EHCP for the autumn term. This covers the period of delay, when Y’s EHCP otherwise would have been in place and is in line with our guidance on remedies and I find this is a suitable remedy for the delays in issuing a final EHCP.
39. Ms X has said she incurred costs beyond what the Council has agreed to reimburse her. However, the costs Ms X has referred to were not specified in Y’s EHCP so we cannot say they were incurred due to the delay and that the Council should refund them.
40. In her response to our draft decision, Ms X has said she has now encountered further delays and payment issues. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about it and has had an opportunity to investigate and reply. Any new issues that have occurred since Ms X brought her complaint to us would need to be raised with the Council as a new complaint.
41. The delays have also caused Ms X distress and put her to the time and trouble of having to make a complaint, which is injustice. However, the Council has already offered to apologise to Ms X and pay her X £250 to recognise this. I find this is a suitable remedy for the injustice caused to Ms X. While Ms X feels this is too low, we do not award compensation in the way a court might. We consider a complainant’s individual circumstances to reach an assessment of the degree of distress or inconvenience they have suffered and make recommendations that we think reflects that.

Back to top

Agreed action

42. To remedy the injustice set out above, I recommend the Council, within one month of the date of our final decision:
• Apologise to Ms X for the delays in issuing Y’s final EHCP and for the distress and avoidable time and trouble she was caused
• Pay Ms X £250 in recognition of the avoidable distress and time and trouble she was caused
• Pay Ms X £1,800 to recognise the four months of missed provision as a result of the delays in finalising Y’s EHCP assessment.
43. The Council will provide us with evidence once it has completed these recommendations.
44. The Council has accepted these recommendations.

Back to top

Final decision

45. I find the Council at fault for delays in issuing Y’s EHCP. To remedy the injustice identified I make the recommendations set out above.
46. The Council has accepted my recommendations and I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman