Summary: The Council was at fault for a delay in deciding what support Mrs X’s daughter should receive for her special educational needs. It should have done this by October 2022, but did not do it until July 2023. This means there was a corresponding delay to some of the support Mrs X’s daughter needed. The Council will offer symbolic payments to Mrs X and her daughter to recognise their injustice.

The complaint

1. The complainant, whom I refer to as Mrs X, complains that the Council caused delays before deciding how to meet her daughter’s special educational needs (SEN). I refer to her daughter as Y.
2. Mrs X says Y missed educational provision for several months and suffered distress. Mrs X also says she herself went to time and trouble trying to get the Council to meet its duties, which caused her distress in her own right.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I considered:
• Information from Mrs X and the Council.
• The ‘Special educational needs and disability (SEND) code of practice’, which provides statutory guidance to councils on meeting children’s SEN.
• Relevant case law.
7. Mrs X 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

The Council’s responsibilities

8. A child with SEN may have an education, health and care (EHC) plan. This document sets out the child’s needs and what arrangements should be made to meet them.
9. If a council proposes to amend an EHC plan, it must send the child’s parent an amendment notice. (SEND code paragraph 9.194). This should happen within four weeks of the date of the review meeting. (R on the application of L and others v Devon County Council (2022) EWHC 493)
10. The council must then issue the amended EHC plan as quickly as possible, and within eight weeks of the original amendment notice. (SEND Code paragraph 9.196)

What happened

11. The Council issued Y’s previous EHC plan in March 2021. The plan said that, among other things, she should receive 45 minutes of direct input from an occupational therapist each week, along with two programmes designed by the therapist and delivered by school staff.
12. Y’s school reviewed this EHC plan in July 2022. Following the review – having considered Mrs X’s views and relevant professional reports, including an educational psychologist report from March 2022 – the Council decided to amend the plan.
13. However, the Council did not send Mrs X an amendment notice until March 2023. It also sent this, along with a draft EHC plan, to Y’s school.
14. The draft EHC plan said Y should receive significantly increased SEN provision. Among other things, this included a doubling of direct occupational therapy intervention, an introduction of 1:1 classroom support, and a personal laptop.
15. The Council says it would have expected the school to start delivering the provision in the draft plan straight away. And Y did start receiving some 1:1 support (particularly in art lessons), lessons in the community where she felt comfortable, and ‘several hours per week’ of occupational therapy.
16. However, it is not clear exactly when the provision was increased (or whether the increased provision was fully in line with the draft EHC plan).
17. The Council issued Y’s amended EHC plan in July 2023. The provision did not change significantly from the draft plan.
18. The Council has accepted that there were ‘unacceptable delays’ to the amendment process, and has apologised to Mrs X. It also told her that its SEN
    team has undergone a major restructure which has involved hiring new staff and completely reallocating all the work.
19. However, the Council said it believed Y’s needs were met throughout the period of delay. It did not agree that she missed out on adequate education.
    
     

My findings

20. The Council had a statutory deadline to meet when amending Y’s EHC plan, and it missed this by around two and a half school terms. This, by its own admission, was a significant delay, for which it was at fault. I have seen no good reason to explain (or to mitigate the Council’s responsibility for) the delay.
21. The Council does not believe that Y missed any education during the delay period. And it is true that she remained in school. It also appears that she may have received at least some increased educational and SEN provision at some point before the Council issued the delayed EHC plan.
22. However, neither the extent of the increased provision nor the start date are clear.
23. Even if Y’s school did start delivering the provision Y needed in March 2023, this would still have been a delay of several months.
24. The EHC plan was due in October 2022, so the provision within it should have been available to Y then. This is because the Council was in possession of relevant professional reports in plenty of time beforehand, so there is no obvious reason why the plan would have been different had it been issued on time.
25. This means Y did miss educational provision and other SEN support because of the Council’s delay. She missed a significant amount of provision prior to March 2023, and then missed more (albeit not very much) provision after March.
26. Mrs X is also likely to have suffered an injustice from the time and trouble she went to while trying to get a quicker outcome for Y.
27. The Council should offer them symbolic payments to recognise their injustice.
28. The Council has taken steps to consider how its service can operate better in future. Any efforts to improve its service are a matter for the Council to decide, not the Ombudsman. Time will tell whether they are effective.

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Agreed actions

29. Within a month, the Council has agreed to:
• Make a symbolic payment of £2,000 to Mrs X, on Y’s behalf, to recognise Y’s loss of support between October 2022 and July 2023.
• Make a further symbolic payment of £100 to Mrs X to recognise the time and trouble she went to during the delay period.
30. The Council will provide us with evidence it has made these payments.

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Final decision

31. The Council was at fault for a delay in issuing Y’s amended EHC plan.

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Investigator's decision on behalf of the Ombudsman