Summary: There was a delay in issuing Y’s Education Health and Care plan which was fault causing a loss of about four months of education provision. There was also a delay in responding to her mother Ms X’s complaint. The Council will apologise, make payments and take action set out in this statement.

The complaint

1. Ms X complained the Council delayed issuing her daughter Y’s Education, Health and Care plan (EHC plan) and delayed responding to her complaint. She said this meant she had to pay for the education package the Council eventually agreed to fund, otherwise Y would have had no suitable education.

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What I have and have not investigated

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. Ms X said Y had been out of education for three years. I have investigated events between September 2021 and September 2022 which is the 12 month period before Ms X contacted us. Matters before September 2021 are late and there are no good reasons for me to investigate them.

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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. 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)
6. 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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How I considered this complaint

7. I considered Ms X’s complaint to us, the Council’s responses and documents in this statement. A colleague discussed the complaint with her.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. Ms X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Relevant law and guidance

10. A child with special educational needs 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.
11. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice.
12. 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. It says:
1. 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;
2. 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;
3. 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).
13. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible.

(R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

14. Education otherwise than at school (EOTAS) is a formal special education package made under an EHC plan. A council has the power to arrange EOTAS if it is satisfied it would be inappropriate for provision to be made in a school. (Section 61 Children and Families Act 2014)

What happened

15. Y has autism and anxiety. She is currently in Year 10. In 2021 she had a place at a mainstream school which she did not attend because of anxiety.
16. On 17 November 2021, Ms X asked the Council for an EHC needs assessment. On 21 December, the Council decided not to carry out an EHC needs assessment. It wrote to Ms X to tell her. The letter included her right of appeal to the SEND Tribunal. (The SEND Tribunal hears appeals against decisions not to carry out an EHC needs assessment. The parties must first try mediation to try and settle an appeal.)
17. Ms X contacted the mediation service. The Council then reviewed and reversed its decision on 18 February 2022.
18. The Council wrote to Ms X on 11 March to inform her it had reversed its decision and would carry out an EHC needs assessment. The Council’s EP was asked for advice on the same day and produced written advice on 16 May.
19. On 18 May, the Council wrote to Ms X to inform her it had decided to issue an EHC plan.
20. On 7 July, the Council issued a draft EHC plan.
21. On 28 July, the EP amended their advice.
22. On 10 August, Ms X complained to the Council.
23. On 23 August, the Council’s funding and placement panel ‘deferred’ deciding whether to fund an education package for Y.
24. Ms X complained to us on 11 September. We said she needed to get the Council’s response and come back to us if it did not respond within 12 weeks.
25. On 27 September, the funding and placement panel agreed EOTAS for Y.
26. On 30 September, the Council issued Y’s final EHC plan. This noted her anxiety meant she could not attend a school with a class of 30 children, even part time or hospital school, which had been offered and was unsuccessful. Y’s SEN provision included:
1. Weekly social skills intervention session of 30-40 minutes
2. Daily attendance at a farm school
3. Weekly mentoring for at least 30 minutes.
27. On 18 November, the Council responded to Ms X’s complaint under the first stage of its complaints’ procedure. It apologised for the following delays:
• Responding to her complaint
• Starting the EHC needs assessment following the review of the decision not to assess Y
• Obtaining the EP advice
• Agreeing funding for Y’s SEN provision
• Issuing the final EHC plan.
28. On 1 December, Ms X escalated her complaint to stage two. The Council responded on 30 December saying Y’s case was complex and had to go to funding panels for fairness and so took longer than expected.
29. The Council told me:
• It accepted the stage one response was delayed and had apologised. It also accepted Y’s final EHC plan was delayed.
• There were delays receiving the EP’s report, amending this following parental comments and because of the funding panel needing further information.
• The EP was asked to prepare a report on 11 March but did not provide one until 16 May.
• The EP service made every effort to respond within the six week time frame. In September 2022, the Council commissioned locum EPs to help with the backlog.
• The agreed provision which has been in place from September 2022 is three on-line one-to-one sessions (one mentoring, one English and one Maths) and three two and a half hour sessions a week at the farm. Y is currently attending two sessions a week at the farm.
30. Ms X said she and her family funded five hours a week at the farm school privately until the Council issued the final plan because the Council did not secure suitable education for Y.

Findings

31. The SEND Regulations require the EP to provide advice within six weeks of this being requested. The Council did not ensure this timescale was met which is fault and had a knock-on effect in delaying the issuing of the final plan.
32. Ms X requested an EHC needs assessment on 17 November 2021. The SEND regulations and Code say Y’s final EHC plan should have been issued within 20 weeks of Ms X’s request, so no later than 6 April 2022. This was a delay of almost five months. We note there was an internal review by the Council. The law or guidance doesn’t say the statutory clock stops and restarts where a council has initially refused to carry out an EHC needs assessment and then changed its mind on review. Our view is that in Y’s situation the Council still needed to issue the final plan within 20 weeks of Ms X’s request. We consider the revised decision to be a response to the original request and thus subject to the 20-week timeframe without interruptions or pauses.
33. The delay meant Y lost out on about four months of SEN provision (not including school holidays). The Council had a legal duty to secure the provision on her EHC plan which was delayed because of the Council’s failings.
34. The Council also delayed responding to Ms X’s complaint which is also fault. This caused avoidable frustration and time and trouble.
35. Ms X/her family paid out for five hours a week at the farm when this should have been secured as part of the education provision on Y’s EHC plan.
36. The Council has taken action to increase staffing in the EP service. This is an appropriate way of minimising the risk of recurrence.

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Agreed action

37. The Council needs will, within one month of my final decision:
• Apologise to Ms X and Y
• Make Y a payment of £2000 to reflect four months of lost education provision. This is at the higher end of our published guidance (which suggests £200 to £600 a month depending on the circumstances of the case) and reflects that Y was not receiving the majority of provision on her EHC plan education (other than provision funded by her family) and the Council’s alternative arrangements (the part time timetable at mainstream school and the hospital school) were noted to be not appropriate for her in the final EHC plan.
• Make Ms X a payment of £250 to reflect her avoidable frustration and time and trouble complaining.
• Reimburse Ms X £3260 for the private provision she/the family funded from the date the EHC plan should have been issued to the date the Council issued the final plan.
• Provide me with a written report of the EP service’s performance for the last four quarters.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. There was a delay in issuing Y’s Education Health and Care plan which was fault causing a loss of about four months of education provision. There was also a delay in responding to her mother Ms X’s complaint. Provisionally, the Council needs to apologise, make payments and take action set out in this statement.
40. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman