Summary: Mrs X complains the Council has not dealt properly with her son Y’s Special Educational Needs. The Council is at fault because it delayed the production of Y’s Education Health and Care Plan. Y lost special educational provision as a result. The Council has apologised and offered to pay Mrs X £250 for her time and trouble. It should also pay Mrs X £3000 for Y’s missed provision.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has not dealt properly with her son Y’s Special Educational Needs (SEN) because it has delayed beyond the statutory timescales when issuing an EHCP and it has not ensured Fred received all SEN provision in his EHCP and the necessary support to ensure a successful placement.
2. Mrs X says this has caused avoidable distress to Y and her family, has impacted Y’s ability to attend his educational placement, Y has missed SEN provision and has caused them economic loss.

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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 an injustice, 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)

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How I considered this complaint

5. I spoke to Mrs X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What happened?

7. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
8. Y’s school (School 1), submitted a request for a statutory assessment for an Education Health and Care Plan (EHCP), on 7 June 2022.
9. Mrs X’s advocate chased the Council in October as they had not heard anything.
10. The Council began the assessment in October, expecting it to be completed by the end of December 2022.
11. There was a delay providing an educational psychologist report.
12. Mrs X complained to the Council in January 2023. The Council upheld her complaint and apologised for the delays.
13. On 24 March 2023 the Council agreed to issue and EHCP for Y.
14. A draft EHCP was prepared and sent to Mrs X at the end of March.
15. Mrs X sent the Council comments on the draft EHCP document, including her preferred school for Y, School 2.
16. The Council consulted with School 1 and School 2. Both schools stated they could meet Y’s needs.
17. A final EHCP for Y was issued on 3 July 2023, naming School 2.
18. Y began attending School 2 in September 2023. Unfortunately, this placement broke down and Mrs X requested that he move back to School 1. The Council facilitated this happening and Y has since been attending School 1.

Analysis

19. The Council has upheld Mrs X’s complaint regarding delays to the EHCP process. It said, “The SEND assessment service was in receipt of Mrs X’s request for an EHCNA on 6th October 2022 and the statutory deadline for completing the EHCNA was therefore 23rd February 2023. Fred’s final EHC plan was issued on 3rd July 2023 which was just under nineteen weeks past the deadline.”
20. The Council says it wrote to Mrs X on 10 October saying the documents had been sent by the school to the wrong department but had now been passed to the SEND assessment team. The Council did not ensure that the request for a statutory assessment was passed to the right team to deal with. This is fault by the Council. The delays experienced by Mrs X and Y in obtaining an EHCP were therefore longer than the Council says they were.
21. The Council should have issued Y’s final EHCP within 20 weeks of the request for him to be assessed. The Council should have issued Y with an EHCP by 25 October 2022.
22. It is clear that the Council did not comply with the statutory timescales. This is fault by the Council. Y’s EHCP was delayed and he has missed special educational provision contained in his EHCP for eight months and one week, approximately equivalent to two terms.
23. Y briefly attended School 2 but was unhappy there. Mrs X told the Council she wanted to change Y’s placement in the latter half of September.
24. The Council arranged for School 2 to hold an emergency annual review within a week, following which it issued a final amended EHCP for Y in early October. Y then began a phased return to School 1 from November. There was no delay in in facilitating a move back to School 1. This is not fault by the Council.

Action by the Council

25. The Council has identified necessary service improvements as a result of Mr X’s complaint, including:
• Changes in staffing and processes to reduce delays in the EHCNA process;
• An action plan to address the shortage of educational psychologists;
• Remodelling the SEND assessment service; and
• Increasing the number of EHCP plan writers to reduce the backlog.
26. The Council has apologised to Mrs X for the delays and offered her £250 acknowledging the time and trouble taken by Mrs X when requesting an update on the delayed assessment and in submitting formal complaints to the Council regarding the delays. I do not consider that this is an appropriate remedy.
27. The Ombudsman’s Guidance on Remedies says that 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. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.
28. Y has been diagnosed with Autistic Spectrum Disorder as well as suffering from anxiety, sensory difficulties, hyperactivity, demand avoidance and communication problems.
29. The Council has provided Y’s attendance records showing he managed to attend school for period of time during the period of delay. However, this cannot by itself be a reliable indicator of any impact. I have also considered the specific provision contained in Y’s final EHCP, his attendance record, and the impact in terms of his failed transition to School 2.

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Agreed action

30. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs X and Y for the loss of SEN provision;
• Pay Mrs X £3000 in respect of lost SEN provision, based on two terms at a rate of £1500 per term.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have found fault by the Council, which caused injustice to Mrs X and Y. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman