Summary: Ms M complains about delay issuing her son B’s Education, Health and Care (EHC) Plan. She complains the Council said the plan would specify special educational provision for B, but the final Plan said his needs could be met in a mainstream school with additional support. The Council has offered a suitable remedy for the impact of the delay. The Ombudsman cannot resolve Ms M’s complaint about the content of the Plan.

The complaint

1. Ms M complains about delay issuing her son B’s Education, Health and Care (EHC) Plan. She complains the Council said the plan would specify special educational provision for B, but the final Plan said his needs could be met in a mainstream school with additional support.

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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 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)
4. 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.
5. Once 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 have considered information provided by Ms M and information provided by the Council, including B’s EHC Plan and the Council’s response to Ms M’s complaint.
7. I invited Ms M and the Council to comment on my draft decision.

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What I found

8. When the Council decided B needed an Education, Health and Care (EHC) Plan, it should have issued the final plan by 24 January 2022. It issued the final Plan on 13 May 2022, fifteen weeks late.
9. Ms M complained about the delay on 7 June 2022. The Council responded to her complaint on 18 August 2022 and again on 30 September. The Council accepted B’s EHC Plan was late and apologised for the delay. The Council said it would consider a remedy for the impact of the delay.
10. Ms M also complained the final Plan said B’s needs could be met in a mainstream school with additional support. She said this was not the case, and an officer had told her the final plan would specify special educational provision for B.
11. Ms M said she wanted B’s plan to specify a type of education rather than a specific school because she was about to move house. Ms M now lives in a different council area.
12. The Council said it based B’s Plan on the advice it received, and officers had told Ms M the final plan would specify mainstream education with additional support. The Council apologised for the misunderstanding.

Consideration

Delay

13. The Council said it would consider a remedy for any impact of the delay in issuing B’s final EHC Plan. I asked the Council what it had decided.
14. The Council said B missed out on 45 hours of learning support as a result of the 15-week delay issuing his EHC Plan. The Council offered a payment of £700 to B’s new school for his educational benefit. The Council invited Ms M to suggest ways in which the money could be used for B’s benefit. The Council offered an additional payment of £100 to Ms M to recognise the impact of the delay.
15. We have published guidance to explain how we recommend 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.
16. I consider the payment offered by the Council is a suitable remedy for the impact of the delay issuing B’s EHC Plan. It is in line with our published guidance.

The type of education specified in B’s Plan

17. Ms M is adamant she made it clear mainstream education would not be suitable for B and an officer told her his Plan would specify special educational provision. The Council says officers never undertook to specify special educational provision and believes there was a misunderstanding. The Council says B’s Plan is based on the advice it received.
18. This is not a disagreement I can resolve.
19. In any case, Ms M has moved to a new council area and a different council is now responsible for B’s EHC Plan. Even if I were to find fault, there is nothing I could recommend the Council do to make amends as it is no longer responsible for B’s EHC Plan.
20. Ms M also had a right of appeal to the First Tier Tribunal about anything she disagreed with in B’s EHC Plan, including the type of education specified in section I. The Tribunal could decide whether B should be educated in a mainstream school with additional support or in a special school. This is not a decision the Ombudsman could make. An appeal to the Tribunal would, therefore, be the most appropriate way to resolve any disagreement between Ms M and either Council responsible for B’s EHC Plan.

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Agreed action

21. During the course of my investigation, the Council offered to make a payment of £700 for B’s educational benefit and £100 for Ms M’s time and trouble in recognition of the delay issuing B’s EHC Plan.

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Final decision

22. I have ended my investigation. The Council has offered a suitable remedy for the impact of the delay issuing B’s EHC Plan. The Ombudsman cannot resolve Ms M’s complaint about the content of the Plan.

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Investigator's decision on behalf of the Ombudsman