Summary: There was fault the Council delayed issuing an Education, Health, and Care plan for Mrs X’s son. Those delays caused an injustice to Mrs X because of uncertainty about her son’s education. The Council has already apologised for those delays. There was also fault the Council did not do enough to consider its duty to ensure Mrs X’s son was being provided education provision, while he was out of school, and this fault has caused Mrs X’s son an injustice. During our enquiries, the Council made a suitable offer of a financial remedy to recognise these injustices.

The complaint

1. Mrs X said the Council delayed issuing a final Education, Health, and Care (EHC) Plan for her son after it agreed it would issue one.
2. Mrs X also said her son was out of school for a significant period and said the Council knew this was the case. Mrs X said the delays meant her son missed out on suitable education during this time.
3. Mrs X said the Council’s delays contributed to her son’s worsening health and it has caused her unnecessary stress.
4. I will refer to Mrs X’s son as Y.

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The Ombudsman’s role and powers

5. 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)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. We provide a free service but must use public money carefully. We do not continue with an investigation if we decide:

• an injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

9. 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.

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What I have not investigated

10. There was fault in the Council delaying issuing a final EHC Plan, and this is specified at paragraph 21. I have not considered the Council’s initial decision to refuse to assess Mrs X’s son, which it took in February 2022. This is because any fault there may have been in the Council’s decision making here, did not cause a significant injustice to Mrs X.

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How I considered this complaint

11. I spoke to Mrs X and considered the information she provided.
12. I considered the Council’s comments and the documents it provided.
13. I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
14. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

What should have happened

Education, Health and Care Plan

15. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 

Timescales for EHC assessment 

16. 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 the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. X-
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Alternative provision (general section 19 duty)

17. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

What happened

Timescales for EHC assessment 

18. In late May 2022, the Council agreed it would carry out an EHC needs assessment. In mid-September, the Council sent Mrs X a draft EHC Plan, and it then issued a final EHC Plan in late May 2023. Mrs X appealed the placement the Council named.
19. The Council told me it issued the final EHC Plan outside of statutory timescales and this was because it had received a high number of EHC needs assessments. It said the SEND service area did not have enough capacity to deal with the requests. Mrs X told me Y started at his new placement from October 2023 onwards.

Alternative provision (general section 19 duty)

20. In early April 2022, Mrs X told the Council that Y was not in school because of his anxiety. I asked the Council how it considered its general section 19 duty after that point. The Council accepted it had not suitably considered its duty here and this meant Y did not have access to full-time education.

My findings

Timescales for EHC assessment 

21. The Council has 20 weeks to issue a final EHC Plan after a request is made. Therefore, it should have issued one before the start of the new academic term in September 2022. It was not available until more than two academic terms later, in May 2023. That is a fault and the Council have accepted this fault.
22. This fault caused an injustice to Mrs X. Because of the delays, she was left with a high degree of uncertainty about what the eventual decision about an education placement would be, for an unnecessarily long time. It also left her with uncertainty about how the delays impacted on Y’s development because of missed provision. Finally, it also meant she had a delayed right of appeal.

Alternative provision (general section 19 duty)

23. Councils must arrange suitable education for pupils who are out of school, including because of illness or for other reasons. The Council have accepted it did not do enough to consider Y’s education when it was aware he was out of school and that is fault.
24. This fault caused Y an injustice because he was left without alternative provision suitable for his needs after May 2022, until his EHC had been finalised.

The Council’s offer of a remedy

25. In respect of the injustices, I have outlined at paragraph 22 and 24, in response to my enquiries, the Council offered a financial remedy as follows:
• To pay Mrs X, £500 for the avoidable distress it has caused her for delays, and;
• to pay Y, £9600 as a symbolic remedy for the loss of four terms of education provision.

Our discretion

26. The Council offered a remedy to recognise the injustices outlined. Because these are in line with our guidance and there is now no unremedied injustice, I do not need to consider this matter further. Any further investigation would not lead to a different outcome.

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Agreed action

27. Within four weeks of the final decision, the Council have agreed to pay a financial remedy to Mrs X and Y in line with its earlier offer as outlined at paragraph 25.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I am ending my investigation with a finding of fault as outlined at paragraphs 21 and 23. That fault caused an injustice and the Council have agreed a suitable financial remedy to recognise the unremedied injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman