Summary: there was delay by the Council issuing G’s Education, Health and Care (EHC) Plan. The Council has apologised for the delay and agreed a partial refund of fees Mrs M paid for G’s tuition.

The complaint

1. Mrs M complains about delay issuing her daughter G’s Education, Health and Care (EHC) Plan. Mrs M is unhappy the Council will not refund the fees for G’s attendance at an online school, and the examinations she took, in the 2021 – 2022 school year.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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 Mrs M and the Council. I invited Mrs M and the Council to comment on my draft decision.

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What I found

7. Mrs M’s daughter, G, stopped attending secondary school in May 2021. Mrs M enrolled G at an online school so she could continue her education in September 2021.
8. Mrs M asked the Council to carry out an EHC needs assessment on 7 July 2021.
9. The Council agreed to undertake the assessment on 6 August 2021.
10. On 21 December 2021 the Council notified Mrs M it had decided not to issue an EHC Plan for G.
11. Mrs M requested mediation and was issued a mediation certificate on 21 February 2022. She submitted an appeal to the SEND Tribunal on 24 February 2022.
12. Following a review of G’s case, the Council notified the Tribunal on 21 April 2022 it would not oppose Mrs M’s appeal and agreed to issue an EHC Plan.
13. The Council issued a draft EHC Plan on 14 July 2022 and a final EHC Plan on 24 August 2022. The final Plan said G would attend the online school. The Council has paid the fees from September 2022.
14. Mrs M complained to the Council about delays issuing G’s EHC Plan and asked the Council to refund the fees for G’s attendance at the online school, and the examinations she took, in the 2021 – 2022 school year.
15. The Council accepted there had been significant delays, and the support Mrs M had received had not been as the Council would have liked. The Council apologised, but declined to refund the fees for G’s attendance at the online school in 2021 – 2022. The Council explained it was Mrs M’s decision to enrol G at the school, and the Council only became responsible once it issued G’s final EHC Plan naming the school.
16. Unhappy with the Council’s response, Mrs M complained to the Ombudsman.

Education, Health and Care Plans: the law

17. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the young person’s special educational needs and the provision required to meet them.
18. The procedure and timescales for assessing a young person’s special educational needs and issuing an Education, Health and Care Plan are set out in legislation and Government guidance.
19. Young people and their parents have a right of appeal to the SEND Tribunal if they disagree with council decisions about their special educational needs, including a decision not to asses their needs and not to issue a Plan.
20. The Ombudsman’s role is to check the Council followed the relevant law, regulations and guidance when considering requests for, and issuing, Plans.
21. We cannot consider complaints once someone has appealed to the SEND Tribunal, although we can consider the Council’s actions again once the appeal has concluded. We would not normally consider the complaint from the point the appeal right arises.

Consideration

22. Regulations say the Council must decide whether to carry out an EHC needs assessment as soon as practicable and within six weeks of a request. The Council agreed to carry out an EHC needs assessment on 6 August 2021, four weeks and two days after Mrs M’s request. There was no delay by the Council.
23. If, following the assessment, the Council decides not to issue an EHC Plan, Regulations say it must notify the applicant as soon as practicable and within 16 weeks of receiving the request to carry out the assessment. The Council decided not to issue an EHC Plan for G on 21 December 2021, twenty three weeks and six days after Mrs M’s request. This was seven weeks and six days outside the maximum time allowed.
24. Mrs M and G had a right of appeal against the Council’s decision not to issue an EHC Plan. After an unsuccessful attempt at mediation – because the Council was unable to make the necessary arrangements – they lodged an appeal. The Council conceded their appeal on 21 April 2022.
25. I have not counted the time between 21 December 2021 and 21 April 2022 when calculating the delays in the process. This is because Mrs M and G exercised their right of appeal to the SEND Tribunal and this part of their complaint is, therefore, outside our jurisdiction.
26. The Council notified the Tribunal it would not oppose Mrs M’s appeal on 21 April 2022 and agreed to issue an EHC Plan. Regulations say the Council must issue a draft EHC Plan within 5 weeks of this date. The Council issued G’s draft EHC Plan on 14 July 2022. This was six weeks and six days late outside the timescale.
27. Regulations say the Council must issue the final Plan within 11 weeks of the date it notified the Tribunal it would not oppose the appeal. The Council issued G’s final EHC Plan on 24 August 2022. This was six weeks and six days late.
28. The Council exceeded the timescales for issuing G’s EHC Plan by a total of fourteen weeks and five days. (This is the delay in the decision not to issue an EHC Plan at the end of 2021 plus the delay issuing the final Plan after conceding the appeal). This delay is fault.
29. Without the delay, G would have had her EHC Plan sooner.
30. In response to my enquiries, the Council accepted there had been delays and offered its apologies. I welcome the Council’s response.
31. The Council accepted it became responsible for the cost of G’s tuition from the date of the final Plan. The Council does not believe it is responsible for the cost of G’s tuition for the entire 2021 – 2022 school year.
32. I agree the Council is not responsible for the cost of G’s tuition for the whole school year. But the Council should have issued G’s final Plan sooner and would, therefore, have become responsible for the cost of her tuition sooner as well if it had done so.
33. The Council said it thought it should have issued G’s Plan by 10 June 2022 at the earliest.
34. My calculations, which are set out above and take account of the two periods of delay on either side of the appeal, suggest the Council should have issued G’s Plan by 13 May 2022.
35. My view, therefore, is that the Council was responsible for the cost of G’s tuition from 13 May 2022.

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Agreed action

36. 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.
37. I recommended the Council pay the cost of G’s tuition, and any exams she took, from 13 May 2022.
38. The Council and Mrs M should agree the amount to be paid. The Council should make the payment within six weeks of receiving all the information it needs to calculate the payment. If Mrs M and the Council cannot agree the amount, they can refer the matter back to me.
39. The Council should provide us with evidence it has complied with the above actions.
40. The Council accepted my recommendations.

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Final decision

41. I have completed my investigation as the Council accepts my recommendations.

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Investigator's decision on behalf of the Ombudsman