Summary: Miss X complained the Council incurred delays in issuing an Education, Health and Care plan for her daughter. She says the lack of agreed provision contributed to her daughter falling behind in her education. Miss X says the Council’s actions caused avoidable stress and anxiety to herself and her daughter. We found the Council to be at fault. The Council has agreed to provide a remedy to address the injustice identified.

The complaint

1. Miss X complained the Council incurred delays in issuing an Education, Health and Care plan for her daughter. She says the lack of agreed provision contributed to her daughter falling behind in her education. Miss X says the Council’s actions have caused avoidable stress and anxiety to herself and her daughter. She would like the Council to issue the final Education, Health and Care plan as soon as possible and to agree a placement for her daughter.

Back to top

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 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)
4. 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 a copy of the final decision with Ofsted.

Back to top

How I considered this complaint

5. I discussed the complaint with Miss X and considered the information she provided.
6. I considered the information provided by the Council.
7. Miss X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

Back to top

What I found

Special educational needs and Education, Health and Care Plans

8. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
9. 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.
10. There is a right of appeal to the 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.
11. 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.

What happened

12. This chronology includes key events in this case and does not cover everything that happened.
13. Miss X says her daughter, who I will refer to as Y, experienced anxiety and some social problems which were aggravated by her going to school. Miss X also says Y’s anxiety meant she would refuse to go to school because she felt out of her depth in lessons. Miss X says Y’s school would not let her attend part-time. As a result, Miss X says she had no other option but to remove Y from the school roll in March 2021 to be home educated.
14. In August 2021, Miss X commissioned a private educational psychologist’s report. Miss X says the report identified Y has dyscalculia and short-term memory difficulties, as well as dyslexic tendencies. Miss X says the report also recommended Y receive EHC support.
15. On 1 November 2021, Miss X asked the Council to carry out an EHC needs assessment.
16. Miss X says the Council agreed to carry out an EHC needs assessment on 1 December 2021.
17. In February 2022, Miss X says the Council commissioned its own educational psychologist’s report which recommended a personal budget for home learning. Miss X says at this time however, Y was showing signs of reluctance to engage with home learning.
18. Miss X says the Council contacted her in May 2022 and apologised for the time taken to produce the EHC Plan. Miss X says she discussed the difficulties she was facing with home schooling Y with the officer dealing with her case, and told the Council that Y wished to return to school.
19. At about this time, Miss X says Y was diagnosed with a health condition.

Miss X’s complaint

20. On 21 June 2022, Miss X complained to the Council that it had not issued an EHC Plan. Miss X said the Council was required to send the finalised EHC Plan within 20 weeks of receiving the request for a needs assessment, but it had failed to do so. Miss X complained the Council had not issued a draft plan and it had therefore not fulfilled its obligation. Miss X said Y’s additional needs meant home schooling had proved to be difficult and Y had expressed a strong wish to return to a school setting.
21. In July 2022, Miss X contacted the Council to change Y’s status from being electively home educated to a child missing education. Miss X says this was to reflect Y’s wish to return to a school setting.
22. At about this time, the Council contacted Miss X and said it needed more time to consider her complaint. It said its corporate complaints policy allowed a maximum timeframe of 65 working days to respond to a complaint.
23. The Council provided its complaint response on 16 August 2022. It apologised that it had not issued Y’s proposed EHC Plan and said this was due to a high turnover of staff over the last couple of years. The Council also said a re-deployment of staff had also impacted Y’s case. The Council acknowledged there were gaps in how its service was able to meet SEN regulations, and said it was recruiting and training staff to address this issue. The Council said it would issue the proposed EHC Plan shortly once it had been reviewed by its panel. It said Miss X would then have the opportunity to provide her response to the proposed plan.
24. Miss X complained again to the Council on 19 August 2022 due to her concerns about the delays in reviewing the proposed EHC Plan.

What happened next

25. The Council issued a draft EHC Plan dated 8 September 2022. Miss X says she received this on 12 September 2022.
26. Miss X contacted the Council shortly after as she disagreed with the content of the draft EHC Plan. Miss X says the plan retained the initial recommendation for home schooling and did not mention Y’s recent diagnosis regarding her health condition.
27. Miss X says the Council provided a revised draft EHC Plan shortly after, which addressed the concerns she had raised. Miss X says she was happy with the content of the revised draft EHC Plan.
28. The Council responded to Miss X’s further complaint on 20 September 2022. It said it had reviewed and issued Y’s proposed EHC Plan on 8 September 2022 and said Miss X was able to provide her comments about the plan.
29. Miss X remained dissatisfied with the Council’s response and brought her complaint to us.
30. Miss X contacted the Council on 1 November 2022 to ask for an update regarding the finalised EHC Plan. Miss X says the Council replied on 23 November 2022 and told her it had requested that Y’s case is discussed at Panel. Miss X says she has not yet received the finalised EHC Plan and says the delay incurred by the Council has probably prevented Y from gaining qualifications next year.

Analysis

31. It is clear from the information reviewed, and the Council acknowledged in its complaint response to Miss X, there is delay in issuing Y’s EHC Plan. Once the Council agreed to assess Y’s needs, it should have issued the final EHC Plan by mid-April 2022. It did not issue the draft EHC Plan until September 2022 and has not yet issued the finalised version. This is significantly outside the 20-week timeframe.
32. I acknowledge the Council’s reasons for the delay. However, the Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. Therefore, the Council’s failure to adhere to the statutory timeframe is fault. 
33. The fault has caused an injustice to Miss X and Y because of the delay. This delay caused uncertainty regarding the agreed provision and added anxiety already associated with education for Y, particularly as she has expressed a wish to return to a school setting. The delay in issuing the final EHC Plan has also delayed Miss X’s ability to exercise her right of appeal to the SEND tribunal should she choose to do so.

Back to top

Agreed action

34. To address the injustice identified, the Council has agreed to take the following action within two weeks of the final decision:
1. Issue the finalised EHC Plan.
35. The Council has also agreed to take the additional following action within one month of the final decision:
1. Provide an apology to Miss X and Y for the fault identified;
2. Make a payment of £200 to Miss X in recognition of the stress and anxiety caused by the delay;
3. Make a further payment of £200 for the benefit of Y in recognition of the stress and anxiety caused by the delay;
4. The Council to inform us of the agreed provision as specified by the final EHC Plan and tell us how it intends to remedy any missed provision to Y, and
5. Remind staff to adhere to relevant statutory timescales as specified in the Code.
36. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

37. I have found fault by the Council causing an injustice to Miss X and Y. The Council has agreed to take the above action to remedy this complaint and I have therefore concluded my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman