Summary: Mrs X complains about delay in the EHCP process, and the failure to ensure provision was delivered to her daughter, Y. We have concluded our investigation having made a finding of fault. The Council failed to issue Y’s EHCP within statutory timeframes, and its failure to agree funding in time resulted in a loss of educational provision for Y. The Council have accepted our recommendations.

The complaint

1. Mrs X complains there was delay by the Council when issuing her daughter, Y’s, EHCP. Mrs X also complains the Council have failed to ensure provision in the EHCP has been delivered. Mrs X says this has not only impacted Y’s education, but her physical and emotional wellbeing too. Mrs X also complains that events have been stressful for her family as a result of the Council’s actions. Mrs X would like the Council to apologise, arrange for the provision to be put in place, and provide a remedy to acknowledge the impact on Y and her family.

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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. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
5. 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)

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How I considered this complaint

6. I liaised with Mrs X and considered the information she provided. I also raised enquiries with the Council and considered the information it provided in response. Mrs X and the Council were offered an opportunity to comment on my draft decision and I considered all comments that were made before making a final decision.

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What I found

Relevant law and guidance

7. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
8. 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 Code is based on the Children and Families Act 2014 and the SEND 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; and
• 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.
9. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice.
10. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan (SEND Regulations, Regulation 13(1))
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

School consultations

12. If a parent asks the Council to name a particular school in the EHC Plan, the Council must agree unless:
• it would be unsuitable for the age, ability, aptitude or special educational needs of the child or young person; or
• admitting the child or young person to the school "would be incompatible with the efficient education of others, or the efficient use of resources".
13. The local authority must consult the school concerned and consider their comments very carefully before deciding whether to name it in the EHC Plan.

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What happened

14. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.
15. Mrs X’s daughter, Y, has special educational needs.
16. In August 2021, Mrs X contacted the council to undertake a needs assessment.
17. In November 2021, the Council responded to Mrs X and declined to assess.
18. In December 2021, School A informed the Council that Mrs X would be appealing its decision.
19. In March 2022, the Council agreed to undertake a needs assessment. The Council informed Mrs X.
20. The Council received the educational psychologist’s report in May 2022.
21. In July 2022, the post-assessment summary was submitted to the panel. Later in the July 2022, the panel made its decision.
22. In August 2022, the Council produced a draft EHCP. The Council sent the draft EHCP to Mrs X in September 2022. Mrs X responded to the Council with comments and concerns.
23. In September 2022, the Council says it offered to meet with Mrs X to discuss her comments, but that Mrs X declined.
24. In early October 2022, the Council sent a copy of the amendments that had been made to the draft to the educational psychologist. In Mid-October 2022, the educational psychologist sent back the documents with the amendments.
25. Later in October 2022, the Council met virtually with Mrs X to discuss the amendments made by the educational psychologist.
26. In November 2022, the Council sent a revised draft EHCP to Mrs X. Within a week, the Council followed up shortly after to send a second version of the revised draft EHCP.
27. Toward the end of November 2022, the Council issued the final EHCP, naming School A in Section I of the plan. The plan was sent out 153 days overdue.
28. In March 2023, Mrs X complained to the Council that School A had not been in receipt of funding to provide Y’s educational provision. Mrs X informed the Council that this had been ongoing for 20 weeks.
29. In March 2023, a funding request was received by the Council from School A. The Council queried the funding request at the beginning of April 2023. The Council did not hear back from School A and sought a response from School A again later in April 2023, and in May 2023. School A formally responded in May 2023, with a new funding request.
30. The Council responded a week later, it says based on the evidence provided it did not agree with the funding. School A responded the following day, and a meeting was set up in June 2023 to have a further discussion.
31. In early-June 2023, the meeting took place, and the Council agreed to the funding following evidence and clarifications provided during the meeting. The Council informed School A and Mrs X that the funding had been agreed.
32. A funding payment was sent in August 2023, and the Council have confirmed that this is sufficient to provide the provision, until it makes a further payment in March 2024.

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Analysis

Background

33. Amongst much other provision described in Section F of Y’s EHCP, notably the plan sets out that Y will have Pastoral/Learning support available in each lesson, meaning that Y will have 1:1 support present in all lessons. I understand this to be for 25 hours per week.

Delays in issuing Y’s EHCP

34. The Council should have issued Y’s EHCP plan by June 2023, which is fourteen weeks after it decided it would assess him. The Council did not issue the Final EHCP until November 2023. This is five months longer than the law allows. Failure to issue Y's EHCP within statutory timescales is fault.
35. I consider the delay in issuing the final EHC Plan did have an impact on Y’s education. It meant she missed out on receiving the full support set out in the Plan for the months between June 2022 - July 2022 and for the period between the beginning of the academic year in September 2022, to when the final plan was issued in November 2022. This represents half a term between June 2022 - July 2023, and half a term between September 2022 - November 2023.
36. Delay in issuing Y’s EHCP has also caused an injustice to Mrs X and her family as this would have caused distress and uncertainty.
37. The Council says it has addressed delay in its service through additional resource and staffing, and training. The Council reflects on a significant improvement in the timeliness of statutory assessments, and I therefore do not consider there is scope of any additional service improvement recommendations to be made.

Delays in agreeing funding and impact on Y

38. The Council disagreed with the funding request it received from School A in March 2023. The matter was not resolved until early-June 2023, approximately four months later.
39. Whilst I acknowledge the Council is obligated to assess costings, it also has a duty to ensure the delivery of educational provision and any issues with costings does not absolve it of its duty to deliver educational provision. The Council in response to Mrs X stage 2 complaint, said that most of the provision identified in Section F of Y’s EHCP it considered to be “ordinarily available” through Quality First Teaching and Mainstream Core Standards and met within the School A’s delegated funding.
40. Mrs X disputes this and says that the integral provision, specifically the 1:1 support specified with Y’s EHCP, was not in place in the absence of the funding being provided by the Council. I note that at the point Mrs X complained to the Council in March 2023, she informed it that the provision had not been in place for 20 weeks.
41. From the evidence available to me, in particular email exchanges between the Council and School A, it is suggestive that 1:1 support was not in place for Y, and had not yet been secured in absence of funding provided by the Council. Therefore, I find that the provision that would be necessitated by funding, namely that relating to 1:1 support for Y was not delivered to Y up until funding was made in August 2023; this represents half a term between November 2022 - December 2023, a full term between January 2023 – April 2023, and a full term between May 2023 – July 2023. This is fault by the Council, which caused an injustice to Y through failure to ensure the provision as per her EHCP was being delivered in full.
42. The Council says that in ordinary circumstances, funding would usually be released at the beginning of the term to avoid delay with providing provision, however, a change was agreed to address delays incurred in consideration of the additional funding. The Council also acknowledges that there was missed opportunity for additional measures to shorten the process of agreeing the additional funding.
43. Events described above would have also been distressing to Mrs X and her family given the worry and frustration incurred as a result of provision not being in place for Y. Mrs X also went through the time and trouble of complaining to the Council in order to find a resolution and this is a further injustice.

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Agreed action

44. As per our Guidance on Remedies, where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. In arriving at figures for the period of fault identified in this complaint, I have considered the severity of Y’s SEN, the provision provided within this period and the significance of the period for Y.
45. I consider that the delay in issuing Y’s EHCP meant that the full provision specified within the plan was not delivered for the period between June 2022 - November 2022. This represents two half terms across two academic years, both at the end of an academic year, and the beginning of a new one, an important and sensitive period where stability and clarity would be beneficial to Y. Considering the above, I have arrived at an amount of £1,200 per term, and therefore £600 for each half of the term for a total of £1,200.
46. I consider that the absence of funding provided by the Council until it was paid in August 2023, meant that integral provision in Y’s EHCP was not delivered, namely that of daily 1:1 support. This is for the period between November 2022 – July 2023; this represents half a term between November 2022 – December 2022, a full term between January 2023 – March 2023 and a full term between April 2023 – July 2023. Considering the above, I have arrived at an amount of £1,000 per term, and £500 for each half of a term for a total of £2,500.
47. To prevent similar occurrences and remedy the injustice described in this complaint, the Council will:
1. Pay Mrs X an amount of £3,700, as a symbolic payment to acknowledge the loss of educational provision for Y.
2. Pay Mrs X an amount of £300 to acknowledge her distress, and time and trouble incurred during this complaint.
3. Write an apology to Mrs X and Y for the fault and injustice described in this complaint. The apology should be in line with our published Guidance on Remedies.
4. Review its policy relating to its funding arrangements with a view to mitigating any possible delays in future. The Council should inform the Ombudsman of the outcome of its review.
48. The Council will complete action points a, b and c within one month of the Ombudsman’s final decision and action point d within two months of the Ombudsman’s final decision.

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Final decision

49. I have concluded my investigation having made a finding of fault. The Council failed to issue Y’s EHCP within statutory timeframes, and its failure to agree funding in time resulted in a loss of educational provision for Y. The Council have accepted our recommendations.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman