Summary: There was fault by the Council. There was delay of one year in completing the Education, Health and Care Plan needs assessment process. There was also delay in arranging alternative education provision once the Council became aware that a child was not in school. An apology, payment and service improvements remedy the injustice caused from loss of suitable education.

The complaint

1. The complainant, who I shall call Mrs X, complains there has been delay in the Education, Health and Care Plan needs assessment process by the Council.
2. Mrs X also complains the Council has not provided suitable and full time alternative education for her child, Y. Mrs X says that she has had to pay the cost of tutors and alternative provision herself and would like the costs reimbursed.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.

Back to top

What I have and have not investigated

7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) Mrs X’s complaint covers several years, but I have investigated from January 2022 when Y was out of school. I have not exercised discretion to investigate events before that date as we would have expected Mrs X to complain to the Ombudsman at the time if the complaints made to the Council in 2016 and 2018 were not responded to. I have considered matters up until 20 December 2023 when the new EHC plan was issued.
8. We cannot investigate complaints against the internal matters that occur in school, only the Council's actions when it becomes aware that a child is out of school and not receiving a suitable education.

Back to top

How I considered this complaint

9. I read the papers put in by Mrs X and discussed the complaint with her.
10. I considered the Council’s comments about the complaint and any supporting documents it provided.
11. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

EHC plan needs assessment

Key facts

12. Mrs X applied to the Council for an EHC Plan needs assessment on 4 May 2022. The Council sent a letter on 17 June 2022 saying that it refused to assess. The Council sent this letter two days after the 6 week deadline. Mrs X appealed to the Special Educational Needs and Disabilities (SEND) tribunal on 14 October 2022 and the Council conceded the appeal on 29 November 2022.
13. The Council issued the draft EHC Plan on 15 May 2023 and finalised the plan on 20 December 2023, naming a type of provision (specialist). Mrs X says that she has not received the final EHC Plan, but I have seen a copy.

My analysis

14. The Council accepts there was significant delay in the EHC Plan needs assessment. The process should take 20 weeks to complete.
15. The Council was 2 days over the 6 week deadline to send the letter saying it refused to assess. The whole process took 85 weeks from Mrs X’s initial request.
16. If the refusal to issue decision is overturned at tribunal, a Council would have 14 weeks from the tribunal order to complete the needs assessment. The Council took 56 weeks.
17. The Council has explained that the delays were due to a national shortage of Educational Psychologists and a three month wait for Mrs X to reply to the draft EHC Plan. I consider some of this delay to be service failure, as the time taken by the Educational Psychologist was outside the Council’s control. The rest of the delay was fault, the Council could have consulted suitable schools before Mrs X responded which would have reduced the delays. The Council only consulted Y’s current school (which they were not attending) on the draft plan initially, with no other schools consulted until October 2023.
18. In order to remedy the injustice from the delay, I propose a financial remedy. Our current guidance recommends a £100 payment for each month an EHC Plan is delayed during the needs assessment process. The delay was 65 weeks but I will not included the 16 weeks that Mrs X took to appeal the decision to refuse the assessment. So, the remedy payment would be for 49 weeks or 12 months, a remedy payment of £1200. This payment does not take account of loss of educational provision, this is for the frustration caused by the delay in the assessment process.

Alternative Educational Provision

Key facts

19. The Council has said it first became aware that Y was having school attendance difficulties in June 2022, when its panel considered the EHC Plan needs assessment request.
20. The Council received a medical referral form on 2 November 2022.
21. A meeting was held on 9 February with Mrs X and the school. The meeting records there were would be 15 hours 1-1 tuition from 7 March 2023 and 2 hours a week equine therapy. Mrs X wanted the tutor she was paying privately to be paid for by the Council rather than a new provider. Mrs X wrote a pre-action protocol letter on 8 March 2023 to complain that the Council would not fund the tutor who had an existing relationship and to ask for transport costs.
22. The Council wrote to Mrs X on 2 May 2023. The Council said it would:
• Provide additional funding to the school, who could then commission Mrs X’s existing tutor directly.
• Commission another tutor to complement the existing tutor.
• Provide Equine assisted learning.
23. On 22 May the Council said it would:
• Commission the existing tutor for 15 hours per week.
• Increase the time of the equine assisted learning.
• Provide compensation for the loss of education from the start of the spring term in 2022. This would be the cost of the tutor of £3508.
• Not cover the costs for kick boxing, drumming, air cadets or transport.
24. Mrs X made an official complaint to the Council. In response the Council offered a remedy payment of £4213. This was calculated as £400 a month for the spring and summer term of 2021/22 and all the academic year from September 2022 until July 2023. Mrs X rejected this offer and complained to the Ombudsman.
25. I consider the start point proposed by the Council for the financial remedy from the Spring term (January) of 2022 is reasonable.
26. Our remedies guidance says ‘Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £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 child’s special educational needs;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether additional provision can now remedy some or all of the loss’.
27. Y has special educational needs and Mrs X arranged educational provision while he was not in school. While she seeks reimbursement for the cost of this, our remedies guidance does not recommend payment of individual expenses in this way, such a travel costs or the costs of particular activities. We propose a remedy payment to acknowledge the impact of loss of education to the child.
28. The Council has proposed a payment in the middle of the range of remedy payments we used to recommend, but our guidance has now been updated to propose an amount per term rather than per month.
29. After looking at all the information, I consider that a payment in the middle of the range of remedy payments is appropriate in this case. This takes into account that Y has received education at home and the Council has paid for some provision in the Winter 2023 term, but none in the 5 other terms. I propose a remedy of £1600 per term for 6 terms which is £9600.

Back to top

Agreed action

30. Within one month of the date of the decision on this complaint, the Council should:
• Apologise to Mrs X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £10,800.
31. The Council will, within three months of the date of the final decision:
• review its processes to ensure it issues final EHC Plans within statutory timescales;
• review its processes to ensure that it consults appropriately with schools without delay; and
• reviews its processes to ensure that where its SEND team become aware of a child who is not attending school, whether or not they have an EHC Plan, a decision on alternative provision is made without delay.
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 of this complaint. This complaint is upheld. The actions outlined above remedy the injustice to the complainant and her family.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman