Summary: Mr D complained about the way the Council handled his daughter’s Education, Health and Care plan. We found fault that caused Mr D time and trouble and his daughter to miss out on SEN support. The Council has agreed to make a payment to Mr D for his daughter’s educational benefit.

The complaint

1. Mr D complains the Council:
1. Delayed issuing a final Education, Health and Care (EHC) plan for his daughter, J.
2. Failed to communicate with them about the plan for four months and refused to allocate a new SEN coordinator.
3. Issued a final EHC plan which did not include input from speech and language therapy, accurately reflect his daughter’s needs or name a school.
2. As a result, Mr D says the family has been caused unnecessary stress, significant time and trouble pursuing the matter and J has missed out on SEN support.

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What I have and have not investigated

3. I have not investigated part c) of the complaint. This is because Mr D could appeal to the SEND Tribunal about these matters.

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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. 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. 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)
7. 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)
8. 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

9. I spoke to Mr D about his complaint and considered the information he sent, the Council’s response to our enquiries and the Special Educational Needs and Disability Code of Practice (“the Code”).
10. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special educational needs

11. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
13. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

EHC plan process

14. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request.
15. If the council agrees to assess, it must seek information and advice on the child's needs, the provision required to meet those needs, and the outcomes expected to be achieved by the child. The council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist, social care, anyone else the council considers appropriate and from any person the child's parent reasonably requests. The council does not have to seek advice or assessment where an assessment has been carried out recently and if the parent, school and relevant experts agree the findings are sufficient for a plan. The Code says advice and information must be provided within six weeks.
16. The Code says the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. 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).
17. An EHC plan must be reviewed and amended by 15 February in the calendar year of a child moving between key phases of education.

What happened

18. Mr D’s daughter, J, is non-verbal, has developmental delay and is being assessed for autism. She is currently attending nursery. Mr D funds J to attend a specialist autism provision one day a week. She is due to start school in September 2023.
19. J’s parents asked the Council to carry out an EHC needs assessment on 11 February 2022. The Council started to consult with professionals and received paediatric advice and educational psychology advice in May 2022. I have seen no evidence the Council consulted with speech and language therapy (SALT). On 30 May it told Mr D it would issue an EHC plan.
20. The draft EHC plan was issued on 6 June and the Council consulted two education providers. The Council told Mr D that the final EHC plan would be delayed as no SALT assessment had yet been done. It contacted SALT on 15 June which said J was on their waiting list for assessment.
21. On 17 October Mr D complained to the Council as he had heard nothing further from the officer, despite chasing several times, the EHC plan was late and the Council had not told him a school had to be chosen by 15 February 2023.
22. The Council upheld his complaint. It apologised that the final EHC plan had not been issued within the statutory timescales. It noted that the SALT assessment was due in January 2023, so it would arrange for the EHC plan to be reviewed in February 2023. The Council said Mr D should continue to contact the officer.
23. Mr D asked for the complaint to be escalated to stage two. He was concerned that there would be no improvement in the Council’s communications with the family as it had not suggested any alternative methods or officers. He also noted that they had not been properly advised that the School had to be chosen by February 2023 and that the EHC plan deadlines were statutory.
24. The final EHC plan was issued on 15 November 2022. The Council then sent its final complaint response. It apologised that he had not heard from the officer, but was unable to change the officer allocated to J. It said information about the EHC plan process was available on its website.
25. Mr D came to the Ombudsman. The SALT assessment was completed in January 2023.

My findings

26. Mr D asked the Council to carry out an EHC needs assessment on 11 February 2022. As the Council agreed to assess, the final EHC plan should have been issued by 30 June 2022. It was not issued until 15 November 2022. This is fault.
27. I realise the Council was waiting for the SALT assessment and that Mr D was keen for the final EHC plan to include this information, but the Code and regulations are clear that the final EHC plan should have been issued. Councils should avoid delays because this delays not only the right of appeal but, where an appeal is lodged, the decision on what provision must be secured. The delay and lack of response from the Council also caused frustration and time and trouble to Mr D as he had to pursue the Council over the summer.
28. J has had an EHC plan setting out the SEN provision she requires since November 2022, but I have seen no evidence she is receiving this support. This is fault.
29. If there had been no delay in the process, J would have been receiving SEN provision from July 2022. I therefore find that J has missed out on SEN provision for eight months.
30. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
31. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the impact on the child and take account of factors such as:
• the child’s SEN;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period;
• whether additional provision now can remedy some or all of the loss;
• whether the period affected was a significant one in a child’s school career – for example, the first year of compulsory education.
32. Taking into account J’s needs detailed in her EHC plan, that she was at a key stage in her education, but that she has continued to receive an education at nursery, I consider a remedy of £300 a month is appropriate.
33. Mr D was concerned about the Council’s communications with families. In response to my enquiries the Council said it had re-structured its SEND Service, including forming a new team to act as a “front door” to all enquiries received by parents or carers. It had also developed recovery plans to manage backlogs, day to day work and communications with families and schools. I welcome these improvements as we have made a number of recommendations to the Council about meeting the EHC plan statutory deadlines in recent years.

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Agreed action

34. Within a month of my final decision, the Council has agreed to:
• Pay Mr D £2,400 for J’s educational benefit to remedy the loss of SEN support from July 2022 to February 2023.
• Ensure J’s SEN provision is put in place
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman