Summary: Ms X complained the Council failed to properly remedy special educational needs support her son Y missed out on and about delays amending his education health and care plane. Based on the information we have seen there was fault in how the Council failed to properly remedy the support Y missed due to delays in issuing his first education health and care plan and further delays in amending his plan in June 2023. The Council agreed to apologise to Ms X for the further delays and pay a financial remedy to recognise the support Y missed.

The complaint

1. Ms X complains the Council has not properly remedied the injustice caused by delays in issuing her son, Y’s, education health and care (EHC) plan and that it issued this plan before it had received advice from Y’s occupational therapy assessment.
2. As a result, she says that Y’s EHC plan still does not properly reflect his needs and the Council has not properly recognised the impact of the earlier delays. She wants the Council to issue a final EHC plan which reflects the occupational therapy recommendations and properly recognise the impact on her and Y.

Back to top

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 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)

Back to top

What I have and have not investigated

5. I have investigated how the Council considered what education or support Y missed due to delays in issuing his first education health and care plan and the subsequent changes the Council made to the plan.
6. I have not investigated events before May 2023, which we considered in our previous investigation into the Council’s involvement in Y’s special educational needs.

Back to top

How I considered this complaint

7. I considered:
• the information Ms X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Education health and care plans

10. 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.
11. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance, ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’).
12. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
13. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
14. These timescales also apply when a council proposes to make amendments to an EHC plan without a review or reassessment (Section 28 SEND Regulations 2014)

Background

15. Ms X’s son, Y, has special educational needs. The Council agreed to Ms X’s request to assess Y’s educational needs in September 2022.
16. In our previous investigation, we found there were delays in the Council issuing Y’s final EHC plan. The Council should have issued Y’s EHC plan in late December 2022, but by the time of our decision in May 2023 the Council had not done so. We recommended, and the Council agreed, it should issue Y’s EHC plan without further delay.

What happened

17. A few days after our May 2023 decision, the Council issued Y’s final EHC plan. This said Y would receive daily and weekly one-to-one sessions with a learning support assistant, and other support during lessons. The plan set out various strategies for Y’s existing school to support him with his education.
18. Around the same time as the Council issued his EHC plan, Y had an occupational therapy (OT) assessment. This assessment was outstanding from the initial assessment of Y’s needs. However, we found in our previous investigation that the Council was not responsible for that delay.
19. The Council did not receive the advice from the OT assessment until early June 2023. When it received the OT report, the Council told Ms X it intended to amend Y’s EHC plan to incorporate the OT recommendations and to reflect a further diagnosis Y had recently received. The Council sent Ms X a draft, amended EHC plan in mid-June 2023, setting out its proposed changes.
20. The Council met with Ms X by telephone in early July 2023 to discuss its proposed changes. While Ms X and the Council broadly agreed with the changes that were needed, the Council did not issue a final amended EHC plan until the end of October 2023. This was after Y’s school had held an annual review of his EHC plan in September 2023 and Ms X had brought a further complaint to the Ombudsman.

My findings

Missed support between December 2022 and May 2023

21. After it issued Y’s final EHC plan, Ms X asked the Council to consider a suitable remedy for the support Y missed due to the delays in assessing his needs, now the support he needed was agreed.
22. Despite the findings of fault in our previous investigation, the Council did not address Ms X’s concerns about the impact on Y of those delays after it issued his final EHC plan.
23. There was a delay of just over 19 weeks between when the Council should have issued Y’s EHC plan in December 2022 and when it issued the plan in May 2023. That amounted to around one and a quarter school terms.
24. During that time, Y was attending the school eventually named in his EHC plan and did receive an education. However, I am satisfied he did not receive all the dedicated support his final plan said he needed, and his school did not have full details of his needs or support it needed to provide. Because of this, my view is Y was not able to take best advantage of the education offered during that time.
25. Where we find that fault by a council has resulted in a loss of educational provision or SEN support, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. Since Y received a full-time education during the 19 weeks of delay and considering both the stage of Y’s education and the severity of his SEN as set out in his EHC plan, I am satisfied a remedy at the low end of the scale is a suitable remedy.

Issuing the May 2023 EHC plan

26. I do not consider it fault for the Council to have issued the May 2023 EHC plan when it did. We had recommended the Council do this without further delay in our earlier investigation and, at the time it issued the plan, it had not received the OT advice.
27. When the Council did receive the OT advice, it promptly considered this and was willing to make changes to Y’s EHC plan.

Delays after May 2023

28. The Council issued a draft amended EHC plan in mid-June 2023. Even though the Council proposed these amendments without carrying out a review or reassessment, the law still required the Council to issue a final amended EHC plan within 8 weeks of proposing the amendments. The Council did not issue the final amended EHC plan until late October 2023; nearly 12 weeks late. That delay was fault.
29. However, I am not satisfied that delay caused Y to miss out on any of the extra support. The evidence shows the Council increased the funding available to Y’s school during that time and Ms X said Y’s school implemented the suggested changes before the Council issued the final EHC plan.
30. The delay in issuing the final amended EHC plan also did not cause Ms X a significant injustice. Although her right of appeal was delayed, Ms X said she was broadly happy with the changes the Council made so did not intend to appeal.

Back to top

Agreed action

31. Within one month of my final decision the Council will:
• apologise to Ms X for delays in issuing Y’s amended final EHC plan; and
• pay Ms X £1,100 to recognise the SEN support Y missed out on due to the delays in issuing his final EHC plan. This is intended for Y’s future educational benefit.
32. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

33. I have completed my investigation. There was fault in how the Council failed to properly remedy the support Y missed due to delays in issuing his first EHC plan and further delays in amending his EHC plan in June 2023. The Council agreed to apologise to Ms X for the further delays and pay a financial remedy to recognise the support Y missed.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman