Summary: Miss X complains the Council delayed completing her daughter, Y’s, Education, Health and Care (EHC) Plan in line with statutory timescales. The Council accepted it was at fault and it also acknowledged it could have communicated with Miss X better. The Council has agreed to our recommendations to remedy the injustice caused by the fault.

The complaint

1. The complainant, who I shall refer to as Miss X, complains the Council delayed issuing an Education, Health and Care (EHC) Plan for her child, Y. Miss X also complains the Council’s communication with her was poor.

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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 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)
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. 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)
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 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

8. I considered Miss X’s complaint and the information she provided.
9. I considered the information I received from the Council in response to my enquiries.
10. Miss 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

Law and guidance

Special educational needs (SEN)

11. A child with special educational needs may have an Education, Health and Care (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. We can consider the other sections of an EHC Plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
13. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) 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. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
14. Section 26 of the Children and Families Act 2014 says councils and their partner commissioning bodies must make arrangements (“joint commissioning arrangements”) about the education, health and care provision to be secured for children who have SEN. This must include arrangements for securing EHC needs assessments.
15. Regulation 6 of the Special Educational Needs and Disability Regulations 2014 (the Regulations) says when carrying out an EHC needs assessment, a council must seek advice, including advice from health professionals, about the needs of the child or young person and the support they may need to achieve the intended outcomes.

What happened

16. Miss X has a daughter, Y, who has special educational needs (SEN).
17. In June 2022, Miss X asked the Council to carry out an Education, Health and Care (EHC) needs assessment for Y which it declined to do. Miss X appealed this decision to the SEND Tribunal.
18. On 7 October 2022, the Council conceded Miss X’s appeal. In line with relevant law this meant the Council had 10 weeks to tell Miss X whether it would issue Y with an EHC Plan and then a further four weeks to issue a final EHC Plan. The Council therefore should have issued Y’s final EHC Plan by mid-January 2023.
19. In mid-January 2023, Miss X complained to the Council about the delay in issuing Y’s final EHC Plan. The Council upheld Miss X’s complaint and apologised. The Council said it would remedy any provision missed due to the delay.
20. Miss X escalated her complaint to Stage 2 of the Council’s complaint process because it failed to address her complaint about the Council’s lack of communication throughout the EHC Plan process.
21. In May 2023, the Council issued its final response to Miss X’s complaint. It upheld her complaints, apologised for the lack of communication and said it would remedy any missed provision as a result of the delay in issuing the final EHC Plan.
22. After exhausting the Council’s complaint process and Y’s EHC Plan still not finalised, Miss X brought her complaint to the Ombudsman (May 2023). Miss X’s complaint to the Ombudsman was about the delay in finalising Y’s EHC Plan and the Council’s lack of communication throughout the EHC Plan process.
23. The Council issued Y’s EHC Plan on 19 June 2023.
24. On 29 September 2023, the Council wrote to Miss X regarding the provision Y had missed from when the final plan should have been issued to when it was issued. The Council reviewed the provision in Y’s EHC Plan with the school and worked with them to identify what it could provide to make up for the lost provision. The Council offered Miss X a payment for the lost provision that could not be made up by the school.

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Analysis

EHC Plan delays

25. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
26. Following the Council’s decision to concede Miss X’s appeal, it should have made the decision whether to issue a plan by mid-December 2022 and then subsequently issued the final plan by mid-January 2023. The Council did not issue Y’s final EHC Plan until mid-June 2023 which is fault.
27. The Council has accepted there were delays in processing and issuing Y’s EHC Plan and assessing her needs. It has apologised for this. In the Council’s final complaint response it said it would remedy any missed provision after the final plan was issued.
28. The Council said it had identified two areas of missed provision which cannot be made up by the school. It offered Miss X a payment of £335.52 to use towards Y’s education. I acknowledge this sum equates to the cost of the missed provision, but I do not consider it appropriately remedies the injustice to Y because it does not take into account the impact of the missed provision on her.
29. Y missed out on nearly 7 months of provision at a significant time in her education (Y was in Year 7). I have taken these factors into consideration when calculating an appropriate remedy payment in line with the Ombudsman’s guidance on remedies. I have considered Y’s SEN and the educational provision provided by the school to make up for the loss of provision.
30. I have also taken into account Miss X’s delayed right to appeal to the SEND Tribunal when calculating an appropriate remedy payment.

The Council’s communication with Miss X

31. The Council accepts it could have communicated better with Miss X. Enquiries such as the use of speech and language reports obtained privately went unanswered and this caused Miss X uncertainty, frustration and avoidable time and trouble. The Council has offered Miss X a goodwill gesture of £150 to apologise for the delay in issuing the EHC Plan and for the avoidable time and trouble.
32. I have also found further fault with the Council for not addressing Miss X’s complaint fully at stage 1. This resulted in further frustration and avoidable time and trouble. I consider the Council’s apologies and the offer of £150 appropriately remedies the injustice caused by the faults in the complaint handling and the lack of communication. Therefore, I have not made any further recommendations on this aspect of Miss X’s complaint.

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Agreed action

33. To remedy the outstanding injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Pay Miss X the £150 it originally offered to acknowledge the avoidable time and trouble;
• Pay Miss X £1800 for the loss of provision in the Spring 2023 and Summer 2023 terms. I recommend Miss X uses this payment for Y’s benefit.
• Issue a reminder to relevant staff of the statutory timescales for EHC needs assessments and EHC Plans; and
• Remind staff of the importance in keeping parents updated during the EHC Plan process, particularly in situations where statutory timescales are not met.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. The Council has acknowledged it is at fault for the delays in processing and issuing Y’s EHC Plan and also for the way it communicated with Miss X throughout the process. The Council has agreed to our recommendations to remedy the injustice caused by the fault. Therefore, I have completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman