Summary: There was delay by the Council carrying out an Education, Health and Care needs assessment. The Council remedied this complaint before it was made to the Ombudsman by issuing the plan with the parents preferred school and making a payment. Mr X said the payment was not enough, as it did not cover a terms school fees. As the remedy is greater than in our remedy guidance for loss of education for a term and it is not certain the school would have been named if the delay had not occurred, no additional remedy is recommended.

The complaint

1. The complainant, Mr X, complains the Council delayed in completing his son’s (Y’s) Education, Health and Care (EHC) Needs Assessment and issuing an EHC Plan. He says the delay caused him distress, resulted in missed education for Y and led him to paying for a private school that could meet Y’s needs.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
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. 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. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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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What I have and have not investigated

7. I have not investigated the loss of education before 29 August 2023. Any loss of education in the summer term was the result of the time allowed for the Education, Health and Care (EHC) needs assessment process, rather than any delay.
8. I have investigated from 29 August 2023 until the Council finalised the EHC plan on 26 January 2024.

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How I considered this complaint

9. I read the papers put in by Mr X and discussed the complaint with him.
10. I considered the Council’s comments about the complaint and any supporting documents it provided.
11. Mr X and the organisation 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

12. Mr X applied for an EHC Needs Assessment on 2 February 2023. The Council had six weeks to decide whether to assess Y and it decided not to proceed with the process at that stage. Mr X challenged the Council’s decision and the case went to mediation. The Council then overturned the decision and agreed to carry out an assessment.
13. The Council had 14 weeks from the date of its agreement to assess Y and issue a final EHC Plan. It should have completed the process by 29 August 2023 but it did not issue a final EHC Plan until 26 January 2024.
14. Y had a place in mainstream school. He had a part-time timetable from May 2023, with 80% attendance.
15. Mr X arranged a place for Y in a private school during summer 2023 without any suggestion or guarantee the Council would agree to fund a place at the school or to backdate any agreement and refund his costs.
16. The Council received the Educational Psychologist’s report on 11 October 2023.
17. The private school Y was now attending said it could meet Y’s needs. A mainstream school replied the school was suitable for Y but ‘the attendance of the pupil would be incompatible with the efficient education of others and/or the efficient use of resources’.
18. The Council has accepted delay in the process and offered Mr X a £2,775 payment for this, before the complaint was made to the Ombudsman. It also offered Mr X a further £500 for his distress, and £500 for any distress caused to Y. This is £3,775 in total.
19. Mr X believes the Council should reimburse him for the private school fees and transport for the term from September 2023. This is almost double the amount the Council has offered. He says that if the Council had completed the EHC Plan sooner, it would have agreed to fund the placement at the school from September 2023 and stopped him from incurring any fees and transport costs for the first term of Y’s attendance.
20. We can only consider the impact of the Council’s delay from August 2023 until the issue of the final EHC Plan in January 2024 and the Council’s offer of £3,775 is in-line with our Guidance on Remedies on this point. The guidance suggests a remedy of between £900 to £2,400 per term for any loss of educational provision but Y did not suffer any loss of educational provision as a result of the delays in this case. The remedy offered is therefore more than we would recommend in the circumstances, if Y had received no education. The Council’s offer of £500 each for Mr X and Y also exceeds the amount we would normally recommend for distress given the length of the delay.
21. The assessment process looks at the child’s needs at the time of the assessment and we cannot say for certain they would have been the same, had the assessment taken place at an earlier date or before Y started at the school in September 2023. The Council has said in its response to my enquiries that if the EHC Plan had been completed on time, it would have named the mainstream school it consulted as it said it was suitable and high needs funding could have been put in place.
22. I understand why Mr X feels the terms fees and transport costs should be refunded. However, I do not consider we can say for certain the Council would have named the private school if the delays had not occurred. Y had a school place available to him at his existing mainstream school and the Council has said it would have offered a place at another mainstream school if the delay had not occurred. This mainstream school did say on the consultation that it was suitable but I do acknowledge in the comments that it felt Y would not make the progress he should at the school.
23. I consider the remedy already offered by the Council, before Mr X complained to the Ombudsman, to be satisfactory and do not intend to ask the Council to pay the terms fees and transport costs. This is because Mr X decided to move Y to the new school aware there was no guarantee the terms fees would be refunded and we cannot say for certain the Council would have named this school if the delays had not occurred.

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Final decision

24. I have completed my investigation of this complaint. This complaint is upheld. The remedy already offered by the Council, before the complaint was made to the Ombudsman was a satisfactory remedy and there are no wider public interest issues to warrant making service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman