Summary: the Council took too long to issue Ms M’s son B’s Education, Health and Care (EHC) Plan. The Council’s apology is a suitable remedy.

The complaint

1. Ms M complains about delay by the Council issuing her son B’s Education, Health and Care (EHC) Plan.
2. She complains
• B did not receive suitable education while at school;
• the delay prevented her from applying for Disability Living Allowance; and
• she put off leaving her abusive partner because she was waiting for the Plan.
3. Ms M wants the Council to pay compensation.

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The Ombudsman’s role and powers

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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I have considered information provided by Ms M and the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

8. B started mainstream primary school in September 2021. The school applied for extra funding to meet his special educational needs. The Council agreed.
9. The school requested an education, health and care (EHC) needs assessment on 18 November 2021. The Council agreed and began the assessment.
10. The Council issued a draft EHC Plan on 9 May 2022.
11. The Council proposed a special school. Ms M wanted B to remain in mainstream school. The Council consulted a number of mainstream schools but none could offer B a place.
12. In September 2022, B’s school told the Council he would be following a part-time timetable at school and receiving alternative provision.
13. The Council consulted more schools.
14. On 11 January 2023, Ms M asked the Council to issue a final Plan. Ms M began an appeal to the SEND Tribunal because the Plan the Council issued did not name a school.
15. The Council issued an amended Plan which said B would remain at his mainstream primary school until September 2023 when he would transfer to a special school.
16. Ms M left the Council’s area during the summer and responsibility for B’s EHC Plan transferred to another council.

Education, Health and Care Plans: the law

17. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision needed to meet them.
18. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in regulations and Government guidance.
19. The Council must complete the process and issue a Plan within 20 weeks.
20. Parents have a right of appeal to the SEND Tribunal if they disagree with the Plan.

Was there fault by the Council?

21. Yes. The Council did not meet the timescales set out in the regulations and guidance. The Council agreed to undertake an education, health and care needs assessment on 18 November 2021. The Council should have issued a final EHC Plan by 7 April 2022. The Council did not issue the final Plan until January 2023. This was 10 months late.

Did the fault cause injustice?

22. The delays have caused Ms M considerable frustration. The Council has apologised. I consider this a suitable remedy for Ms M’s frustration.
23. Other than this, I cannot say the delay caused injustice for which I should recommend a remedy.
24. A special school place was available in May 2022, but Ms M wanted B to remain in mainstream school. The Council consulted mainstream schools but was unable to find a mainstream school that could meet his needs.
25. B remained a pupil at the mainstream primary school he attended which the Council subsequently named in his EHC Plan. The school had the benefit of the draft Plan, which set out B’s needs and the provision required to meet them, from May 2022. The Council says the school also had access to support from its specialist teaching service. The school received a high level of additional funding to meet his needs until the Council issued the final Plan.
26. Ms M did not use her right of appeal to the SEND Tribunal to challenge the provision set out in B’s Plan when the Council issued the final Plan.
27. Taking all these facts into account, I do not find the fault by the Council – the delay finalising B’s EHC Plan – caused an injustice for which I should recommend a remedy.
28. Ms M complains the delay issuing B’s EHC Plan prevented her from applying for Disability Living Allowance (DLA). An EHC Plan is not required to apply for DLA.
29. Ms M says she put off leaving her abusive partner because she was waiting for the Council to issue B’s EHC Plan. The Council expressed its regret, but said Ms M did not mention her personal circumstances. If she had, the Council said it would have offered advice about transferring the Plan to another council. There was no fault by the Council.

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Final decision

30. I have completed my investigation. There was fault by the Council in the delay issuing B’s EHC Plan, but the Council’s apology is a suitable remedy for the injustice this caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman