Summary: Mr X complained the Council took too long to complete an Education, Health and Care Plan assessment for his child, Z. The Council was at fault for delay in issuing the final Plan. This caused Mr X avoidable uncertainty and frustration and meant Z missed out on special educational provision. To remedy their injustice, the Council will apologise and make payments to Mr X.

The complaint

1. Mr X complained the Council took too long to complete an Education, Health and Care Plan assessment for his child, Z. Mr X said this meant Z missed out on provision they should have had and that he had to pay for Speech and Language Therapy and tuition unnecessarily.

Back to top

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 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)
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 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.

Back to top

How I considered this complaint

6. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s response to Mr X’s complaint; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
7. Mr X and the Council 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

Relevant law and guidance

8. Children with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F sets out the child’s special educational provision. Section I ‘names’ the school the child will attend.
9. 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:
• where a council receives a request for an EHC assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC Plan after an assessment, it should prepare a draft EHC Plan. The council should send the draft Plan to the child’s parent or the young person and give them at least 15 days to comment. It should also send the Plan to schools that may be able to accept the child or young person and meet their needs. After this, the council should issue the final Plan. This should take around six weeks; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC Plan.

What happened

10. In late March 2023, Mr X sent an EHC assessment request to the Council. Almost six weeks later, the Council agreed to begin an EHC assessment for Z.
11. The Council asked an educational psychologist (EP) to provide advice for the assessment. The advice was due by early-June 2023 and the Council received it in late June 2023.
12. In early August, Mr X began paying for Z to receive private Speech and Language Therapy (SALT) for one hour per week and tuition for one hour per week. Z received the SALT jointly with their sibling.
13. The Council decided to issue Z an EHC Plan. In late October, it held a placement panel where it considered which school to name in the Plan. The Council sent Mr X a copy of a draft Plan in mid-November. Mr X responded to the draft by the end of the month.
14. The Council held a second panel to decide which school Z should attend in late February 2024. The panel concluded the Council should consult with local mainstream schools.
15. In late May, the Council finalised Z’s EHC Plan. It named Z’s existing private school and included the following special educational provision.
• SALT for one hour per week.
• Use of various strategies to help Z engage with school, break tasks up into smaller sections, understand and interpret text and improve their writing skills.
• Additional teaching to help Z develop their vocabulary and improve comprehension and reasoning skills.
• Opportunities to develop their emotional literacy and explore healthy ways to express their emotions.
• Space to reflect on social interactions and develop understanding of other people’s behaviour.

Findings

16. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Mr X requested an assessment for Z in late March 2023; the Council made its decision to assess within six weeks; this was in line with the timescale so was not fault.
17. Councils must seek EP advice as part of an EHC assessment. This should be received within six weeks of the council requesting it. The EP’s advice was around three weeks late. Against a background of substantial shortages of qualified EP’s this delay was not significant and does not amount to fault. Had it acted promptly, the Council could have still issued the final EHC Plan by the 20-week deadline of early August 2023.
18. However, the Council took until mid-November to issue Z’s draft EHC Plan and until late May 2024 to issue the final EHC Plan. This unacceptable delay was fault. It is apparent some of the delay related to which school would be named in the EHC Plan. This is not a valid reason for exceeding the timescales set out in law. The delay caused Mr X uncertainty and frustration while he awaited Z’s final EHC Plan.
19. EP advice forms a key source of information for a council to decide what provision to include in a child’s EHC Plan. Because the EP sent their advice on Z’s needs in time for the Council to have issued Z’s EHC Plan in timescale, I am satisfied that on balance, the Plan the Council issued in May 2024 is not significantly different from what it would have been if the Council had issued the plan in early August, as it should have.
20. Therefore, accounting for school holidays, Z missed out on two terms of special educational provision. Mr X has been paying for one hour of SALT per week for Z since early August 2023. This is the same provision in Z’s EHC Plan. Mr X incurred the expense of the therapy when it should have been secured by the Council. I have therefore recommended the Council reimburse Mr X for the cost of the SALT below. I have not recommended the Council reimburse the cost of the tutoring for Z as it is not in their EHC Plan. Instead, I have recommended a symbolic payment to recognise the impact of the remaining special educational provision which Z missed out on.

Back to top

Agreed action

21. Within one month of my final decision, the Council will take the following actions.
1. Apologise to Mr X for the frustration and uncertainty he felt due to the delay issuing Z’s EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
2. Pay Mr X a total of £2,200. This includes £200 to recognise his uncertainty and frustration and £2,000 in recognition of the impact of Z’s lost provision.
3. Reimburse Mr X the cost of half of SALT he paid for from the date it started in early August 2023 to the date of the final EHC Plan in late May 2024. The cost is halved to reflect the fact Z received the SALT therapy along with their sibling.
22. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

23. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman