Summary: There was fault in the Council delaying issuing an Education, Health and Care plan for Mr X’s son. Those delays caused an injustice to Mr X because of uncertainty about his son’s special education provision and education placement. The Council have already apologised for delays. It has agreed to pay Mr X a financial remedy to properly recognise his injustice.

The complaint

1. Mr X said the Council delayed finalising his son’s Education Health and Care plan (EHCP) after he asked it to carry out an EHC needs assessment. Mr X said this meant his son (Y) missed special education provision (SEP) which may have started sooner if but for delays.
2. Mr X said his son is already out of school and the delays have hindered his development further at a critical time in his education. Mr X also said the Council gave inaccurate information about school preferences and about the consultations it had. Mr X said the delays caused him distress because of uncertainty.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5), section 34(B)6))

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What I have and have not investigated

7. Mr X said in his complaint to us, the Council did not make sure his son had full-time education between April 2022 and August 2023. I have not seen evidence the Council has fully considered this aspect of Mr X’s complaint and there are not sufficient good reasons for me to exercise discretion to investigate.

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How I considered this complaint

8. I spoke to Mr X and considered the information he provided.
9. I considered the Council’s comments and the documents it provided.
10. I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

Special Education Needs

12. 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 tribunal can do this.
13. 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.
14. 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.

What happened

15. Mr X asked the Council to assess Y for an EHCP in November 2022 and the Council took advice from an Education Psychologist (EP) in late February 2023.
16. For the Council to have completed the EHCP process in line with statutory guidance, it should have issued Y’s final EHCP by mid-April 2023.
17. In early May, Mr X made a formal complaint to the Council. The Council wrote back to Mr X and accepted it was at fault because of delays. It offered an explanation to Mr X saying it had a very high number of EHC needs assessment requests. It also said a shortage of EP’s nationally had caused delays. Additionally, it said it had recently recruited business support staff to speed the process up.
18. Mr X escalated his complaint asking for a date for when the Council would issue Y’s draft EHCP. Mr X also highlighted that Y was not attending school.
19. The Council wrote back and reiterated its earlier apology. It also apologised it could not give Mr X a definitive date but told him a panel would consider his case in early July.
20. In mid-July, the Council issued a draft EHCP. During the exchange Mr X had with the Council about the draft, he raised two further concerns. He said the Council had written to Y’s previous school and told them that this was his preferred school placement. Mr X said this was not the case.
21. Mr X also said the Council had not consulted with Y’s education providers as part of the wider consultation on his SEP.
22. In early August, the Council finalised Y’s EHCP and gave Mr X his right to appeal the contents. In section I it named the placement as ‘suitable mainstream provision’. Given his earlier concerns, Mr X wrote back to the Council concerned about how it had decided this was a suitable placement.
23. During the contact Mr X had with the Council, it confirmed it did not have the consultation advice from Y’s education providers. In late August, it told Mr X, it was now consulting with the providers and would then consider whether Y’s EHCP would need further amendments.

My findings

24. The statutory guidance says the Council has 20 weeks to issue an EHCP from when it receives a request for an EHC needs assessment. This meant the Council should have issued a final plan by mid-April 2023. It did so in August, which was late and that is fault.
25. This fault caused an injustice to Mr X, because it delayed his right to appeal the provision. It also added to the further uncertainty about what, if any SEP his son will now be due, which may have started earlier if but for faults.
26. The Council have apologised for these delays already and that is appropriate. I recommended a financial remedy the Council should now pay Mr X, to fully recognise his injustice here, and the Council have agreed.
27. The Council have said it was unable to confirm the nature of the consultation it had with Y’s education providers during the EHC needs assessment. The Council have apologised to Mr X for any fault here, including the error in naming Y’s previous school in an earlier draft version (paragraph 20). The Council have said it is now consulting and have issued an amendment notice.
28. On balance it is likely the fault in not properly consulting during the draft stages, led to delays in the Council finalising Y’s EHCP. I have considered this in my overall remedy which as I have said, the Council have agreed.
29. We recently recommended the Council improve its timeliness relating to EHCP’s, therefore I do not need to make any further service improvement recommendations.

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Agreed action

30. Within one month of the final decision, the Council should pay Mr X £500 for the distress and uncertainty in delaying issuing Y’s EHCP.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. There was fault, which caused an injustice.

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Investigator's decision on behalf of the Ombudsman