Summary: Ms X complains the Council delayed issuing her son’s Education, Health and Care plan. The Council acknowledges it was at fault for failing to finalise the plan in line with the statutory timescale. I have made recommendations to remedy the injustice caused by the fault for the Council to consider.

The complaint

1. The complainant, who I shall refer to as Ms X, complains the Council delayed in issuing her son’s, Y’s, Education, Health and Care (EHC) plan.

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What I have and have not investigated

2. Ms X also complained that the Council responded unreasonably to her request for direct payments for transport for Y. I decided not to continue investigating this matter because this matter was resolved during the course of the complaints process with the Council.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. 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.
6. 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)
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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How I considered this complaint

8. I considered Ms X’s complaint and the information she provided.
9. I considered the information I received from the Council in response to my enquiries.
10. Ms X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

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What I found

Legal administrative background

11. A child with special educational needs may have an 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 SEND Tribunal can do this.
12. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the guidance’) 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. The guidance says:
• one of the principles underlying the SEN Code is that councils need to have regard to the views, wishes and feelings of the child and their parents, to support them in decision-making; and
• councils must ensure that children and their parents are involved in discussions and decisions about their support.
13. The guidance also says:
• 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;
• as part of the assessment, councils must gather advice from relevant professionals. Those consulted have a maximum of six weeks to provide the advice;
• the whole process, from the point when an assessment is requested until issuing 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 15 days to comment on a draft EHC plan.
14. Section I of an EHC plan sets out either a named school or type of setting. At the draft stage, parents can name a particular school. A council is then required to consult that school and must name that school unless one of the following conditions applies:
• the school requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or
• the attendance of the child at the requested school would be incompatible with:

“(i) the provision of efficient education for others, or

(ii) the efficient use of resources.” (SEN Code paragraphs 9.79-9.80)

15. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. Reviews should happen at least annually.
16. The guidance says that where a setting identifies a child as having SEN they must work in partnership with parents to establish the support the child needs. It also stipulates that all settings should adopt a graduated approach with four stages of action: assess, plan, do and review. This graduated approach is adopted by the Council in its policy regarding SEN.

What happened

17. This is a brief chronology of key events that are relevant to the investigation. It is not an exhaustive list of everything that happened.
18. Y is 7 years old and has a diagnosis of autism spectrum disorder (ASD). Y experiences significant difficulties with social communication, social understanding and sensory processing.
19. On 15 July 2021, the mainstream setting Y was attending at the time requested an EHC needs assessment. The Council made its decision to assess Y on 2 September 2021 and it advised Ms X of this decision.
20. Following the assessment, the Council issued a draft EHC plan on 3 November 2021. On 10 November 2021, Ms X sent her amendments to the Council and requested School 2, a special school, to be named on Y’s plan.
21. On 18 November 2021, the Council consulted with School 2 and gave it 15 days to respond.
22. On 24 November 2021, the Council issued a second draft of Y’s EHC plan with the amendments as suggested by Ms X.
23. On 2 December 2021, the Council advised Ms X that it had not received a response from School 2 and therefore it could not go before its panel for a decision. The Council decided not to issue the EHC plan whilst it was awaiting a decision on specialist provision.
24. On 20 December 2021, the Council’s Panel considered Y’s placement without the consultation response from School 2. The Council decided to name School 2 on Y’s EHC plan unless the school was able to identify a good reason not to. In response to this email, the Council received a notification that School 2 was closed for the Christmas break.
25. The Council advised Ms X it would not be able to confirm its decision until the beginning of next term and in the meantime, Y should continue to attend School 1. The Council apologised to Ms X that it had not issued Y’s final EHC plan within 20 weeks of the request.
26. On 5 January 2022, School 2 responded to the Council and refused to offer Y a place. The Council discussed the refusal with School 2 and it eventually agreed to provide a place to Y.
27. The Council contacted Ms X and advised her it would be naming School 2 on Y’s EHC plan and it will proceed to issue the final plan.
28. The Council issued Y’s final EHC plan on 14 January 2022.

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Analysis

29. The Council should have produced Y’s EHC plan within 20 weeks of the request but it issued it 6 weeks later than it should have. This is fault. This caused Ms X and Y uncertainty around which school he would be required to attend. Additionally, Y lost out on 6 weeks of the provision he would have received at School 2. However, it is noted that Y was not without provision during this six week period as he was still on roll at School 1.
30. I have seen evidence of Ms X contacting the Council on several occasions requesting updates on when the EHC plan will be issued. I acknowledge the delay has also caused unnecessary time and trouble for Ms X.
31. I understand Ms X found the process preceding the needs assessment long and frustrating. However, the Council followed the statutory guidance in adopting a graduated approach of assess, plan, review and do. Therefore, I do not find the Council at fault for this.

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Agreed action

32. To remedy the injustice caused by the fault, the Council has agreed, that within four weeks of this decision, it will:
• Pay Miss X £250 to recognise the six week delay in issuing Y’s EHC plan. This should be used for the benefit of Y’s education.
• Pay Miss X £200 for the avoidable time and trouble, uncertainty and frustration caused by the fault.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. The Council acknowledges it was at fault for failing to finalise Y’s EHC plan within the statutory timeframe. It has agreed to remedy the injustice caused by the fault. I have now completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman