Summary: Ms B complained about the way the Council handled the EHC plan process for her son, X. Ms B said the Council delayed in completing the assessment and EHC plan following the direction of the SEND tribunal. She said that as a result X missed nursery provision and his start at the specialist provision he needs was delayed by a year. She said it had an impact on the whole family. There was fault by the Council which caused injustice. It will apologise and make a payment to Ms B.

The complaint

1. I refer to the complainant as Ms B. She complained about the way the Council handled the EHC plan process for her son who I refer to as X. Ms B said the Council delayed in completing the assessment and EHC plan following the direction of the SEND tribunal. She said that as a result X missed nursery provision and his start at the specialist provision he needs was delayed by a year. She said this had an impact on the whole family.

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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. 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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
5. 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)

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How I considered this complaint

6. I considered the complaint and documents provided by Ms B and spoke to her I asked the Council to comment on the complaint and provide information. I also asked School 2 to comment. I sent a draft of this statement to Mr B and the Council and considered their comments.
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.

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What I found

Guidance

8. 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.

What happened

9. Ms B requested the Council assess X for an EHC plan. The Council refused and Ms B appealed to the Special Educational Needs and Disability Tribunal (the Tribunal). The tribunal directed the Council to assess X.
10. The Council issued the final EHC plan in September 2022. It named a mainstream primary school, School 1. Ms B says that X attends there from 9 to 11.30 four days a week. Ms B’s preference was for X to attend a specialist provision, School 2. There were no places available at School 2 but he does attend some specialist provision there for two and half hours one day a week.
11. X had been attending nursery but the provision closed in April. Ms B could not find alternative provision for him and the nursery at her preferred provision, School 2, would not consider him as there was not a EHC plan in place, or in draft.

Analysis

12. The time taken for the Council to issue the final EHC plan was 30 weeks from the date of the Tribunal decision. It should have taken 20 weeks. There was delay of six weeks at the outset as the Council did not action the decision. There was further delay once the plan was at draft stage. The Council said this was because of the unexpected absence of the keyworker and staffing difficulties within the team. The consequence of this was the production of the draft plan and the consultation with School 2 was delayed. Had there been no delay then School 2 would have received the consultation while there were still spaces available for a start in September 2022. Therefore because of the delay in the EHC plan process X missed starting at School 2 in September 2022.
13. The Council did not name School 2 on the final EHC plan. However it accepted it would be the appropriate place for X and it is agreed he will attend there from September 2023. Ms B had a right of appeal once the final EHC plan was issued. She did not use that because it would not have achieved anything for her as there was no place at School 2, and it was agreed he would have a place when it became available in the next academic year. Under these circumstances it was not reasonable to expect Ms B to appeal to the Tribunal and we can, therefore, consider a remedy for the faults and consequent injustice I refer to above.
14. The provision X receives is 9 to 11.30 four days a week at School 1, the mainstream school named on the EHC plan, and 2.5 hours on one day a week at School 2. This falls well short of the provision he would have received had he been full-time at School 2 from September 2022. It was also a significant year for him being his first in full-time education. We have guidance on the remedies we consider appropriate in this type of case. A payment of £1500 per term for the three missed terms is the appropriate level of payment to provide a remedy in this case.
15. Ms B complained X missed out on nursery provision when the nursery he was attending closed in April 2022. She said that without the EHC plan process being further advanced she was not able to find another suitable place. The Council said it signposted her to possible provision but without the EHC plan could not consult specialist provision.
16. The Council has a duty to secure early years provision for children of 3 and 4 years old. The information the Council provided does not show it did secure such provision for X and the delay in the EHC plan process contributed to that. That is fault. The only remedy that can now be made for that missed provision is a financial payment. The Council should pay £200 a month for the missed provision over four months.
17. The failings had an impact not just on X but on Ms B and the rest of the family. The Council should pay a further £200 in recognition of that.

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Agreed action

18. The Council will
• apologise to Ms B and pay her £5500
• say what steps it has taken to address the staffing issues that contributed to the delay in this case.
19. The Council should provide us with evidence it has complied with the above actions within one month of the final decision.

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Final decision

20. There was fault by the Council which caused injustice.

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Investigator's decision on behalf of the Ombudsman