Summary: We will not investigate this complaint about delay in the Council issuing Ms X and Mr Y’s child’s final Education, Health, and Care plan. This is because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Ms X and Mr Y by the fault accepted.

The complaint

1. Ms X and Mr Y complains the Council delayed in issuing their child’s final Education, Health, and Care (EHC) plan. This in turn delayed their child receiving the special educational provisions they were assessed as needing.

Back to top

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)

Back to top

How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

5. If we were to investigate it is likely we would find fault causing the complainant injustice. This is because the Council accepted there was delay in the final EHC plan being issued.
6. I note the Council stated it was only responsible for the provision specified within the EHC plan once it was finalised. This is an accurate statement. However, in determining the injustice caused by faults identified/accepted, we consider what position the child would have been if not for the fault. In this case, I am satisfied the EHC plan should have been issued by August 2020. Therefore, if the fault had not occurred, the child would have been receiving their special educational provisions from that point.
7. Therefore, I am satisfied the delay in issuing the final EHC plan meant the child lost out on their special educational provisions for around 11 months. However, Ms X and Mr Y have mitigated the impact of the loss of SEN provisions by privately commissioning most of the special educational provisions outlined in the final EHC plan. They arranged for speech and language therapy (SALT) provision and math and English tuition.
8. I am satisfied the Council should reimburse the parents for the cost of arranging these provisions because these provisions were eventually specified within the final EHC plan. Therefore, if the fault had not occurred, the child should have received these special educational provisions from August 2020 onwards.
9. I note the Council says the EHC plan does not specify tuition and I agree with this. However, the plan does specify one to one numeracy and reading comprehension intervention should be delivered three times per week and weekly, respectively. Therefore, I am satisfied the tuition provision commissioned likely covered this provision. Ms X and Mr Y said the total they paid was £2265. The Council can ask Ms X and Mr Y to provide invoices to evidence the cost incurred.
10. The only provision Ms X and Mr Y did not appear to commission privately is the direct occupational therapy (OT) provision. Ordinarily, we would recommend a set termly payment to recognise the loss of provision/education as a whole. However, I do not consider it appropriate to do so in this case as the parents have largely mitigated the impact of the loss of SEN provision due to commissioning private provision. Therefore, I consider it would be more appropriate to recognise the uncertainty of not knowing how the lack of OT provision would have impacted the child. Due to the significant delay, I consider £500 to be an appropriate amount.
11. I also consider it is appropriate for the Council to make a financial payment to recognise the distress, frustration, and time and trouble caused to Ms X and Mr Y. This is to reflect both the delay in finalising the final EHC plan, as well as the delay in responding to their complaints. The Council should make a payment of £500.
12. I agree with the Council’s view that it should reimburse the cost of the occupational therapy report (£1378). This is because the Council accepted it should have obtained this information. Again, the Council can ask Ms X and Mr Y to provide invoices to evidence the cost.
13. I do not agree the Council should reimburse Ms X and Mr Y for the cost of the Educational Psychologist’s (EP) report they privately commissioned. This is because there is clear evidence the Council had sourced EP advice. However, Ms X and Mr Y disagreed with the professional judgment of the EP and so it was their choice to seek a second opinion. This was not a decision that was a direct result of any fault by the Council.
14. Similarly, I do not agree the Council should reimburse Ms X and Mr Y for their legal costs. It is important to note Ms X and Mr Y could have contacted the Council and the Ombudsman without a solicitor and it is not necessary to have a solicitor to engage with either organisation. Therefore, I am satisfied it was their choice to engage the services of a solicitor.

Back to top

Agreed action

15. To its credit, the Council has agreed to resolve the complaint and will complete the above within four weeks of the final decision statement.

Back to top

Final decision

16. We have upheld this complaint because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Ms X and Mr Y.

Back to top

Investigator's decision on behalf of the Ombudsman