Summary: Ms X complained the Council delayed issuing her Child, Y’s Education, Health and Care (EHC) Plan within the statutory timescales and Y did not receive educational provision. The Council was at fault for delay in finalising Y’s EHC Plan and Y missed provision to which they were entitled for four and a half terms. The Council will apologise and pay Ms X for Y’s lost provision. The Council has already put in place actions to improve its services.

The complaint

1. Ms X complained the Council delayed issuing her child, Y’s Education, Health and Care (EHC) Plan in line with the statutory timescales. Ms X also said Y had not received educational provision. Ms X said she received poor communication from the Council and there was delay with the Councils complaint handling. Ms X said Y missed education to which they were entitled and she had to give up work which caused her distress, a mental health impact, avoidable time and trouble and a financial burden.

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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 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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.
4. 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.
5. 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.
6. 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)
7. 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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How I considered this complaint

8. I considered:
• the information Ms X provided;
• the information the Council provided and its response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Education, Health and Care (EHC) Plan

10. A child or young person with special educational needs 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. Section F sets out the special educational provision needed by the child or young person and Section I states the name and/or type of school. 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 and process for EHC assessment

11. 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;
• 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;
• a council should decide if it will issue an EHC Plan within 16 weeks of the request for an assessment; and
• 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.
12. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so.
13. The council should consider, with the child’s parent and the parties listed, the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47).
14. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right only arises once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Electively home educated

15. Electively home educated means parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups.
16. The code states that councils should work with parents who EHE to ensure the SEN of EHE children are met, where the council already knows the children have SEN or the parents have informed the council about their child’s SEN (paragraph 10.30). The Code goes on to say that councils should consider using its powers to help parents provide suitable provision where necessary.

The Council’s complaints process

17. The Council operates a two-stage complaint process. It says it will respond to stage 1 complaints within 20 working days and stage 2 complaints within an additional 20 working days.

What happened

18. Y stopped attending a mainstream secondary school (School A) in late 2021 when Y was in Year 7 because of Y’s school-based anxiety and deteriorating mental health. Y started to work with Children and Adolescent Mental Health Services (CAHMS) to improve their mental health and was diagnosed with autism.
19. In September 2022 the Council recorded Y as being electively home educated.
20. In late September 2022 Ms X asked the Council to carry out an Education, Health and Care (EHC) needs assessment for Y. Ms X expressed that the outcome Y needed was a place in a specialist school that could meet her needs and she could be positive about attending. The Council acknowledged the request six days later.
21. In mid-October 2022 the Council agreed to complete an EHC needs assessment for Y.
22. The Council sent letters to professionals asking for an assessment report, including the educational psychology (EP) service. In October and November 2022 the Council received assessment reports from EP, social care and CAHMS.
23. In mid-January 2023 the Council sent Ms X a decision letter. It said a multi-agency panel decided Y should have an EHC Plan. The Council also sent Ms X Y’s draft EHC Plan and asked Ms X to consider school preferences for Y. The Council said Y’s EHC Plan would be finalised by early February 2023.
24. In early February 2023 the Council asked Ms X for school preferences and Ms X asked for more time so she could attend school open days and review Y’s draft Plan. Ms X said she was looking at independent schools for Y and did not want Y to attend a mainstream school. Between mid-February 2023 and mid-March 2023 the Council consulted with five schools including three mainstream schools and two special education schools.
25. In late April 2023 and early May 2023 Ms X contacted the Council for an update. The Council responded to Ms X and said they were waiting for all school responses. By mid-May 2023 the Council received all the school responses back. All of the mainstream schools said they could not meet Y’s needs. One special school did not have capacity for Y and the other special school (School B), which was Ms X’s preference, said they could offer Y a place.
26. The place at School B would have been available in September 2023. The records show the place was offered to a different child because the Council did not confirm Y’s place. Ms X said the Council did not provide her with the school consultation outcomes.
27. The Council did not update Ms X until September 2023 when it told her she had a new caseworker. Ms X emailed the new caseworker for an update and requested more support for Y. The new caseworker emailed Ms X in late September 2023 about next steps and tutoring for Y but Ms X said the tutoring was not put in place.
28. In November 2023 Ms X emailed her caseworker for an update but was told due to staff absences she had two new caseworkers but was not provided with a substantive update.
29. In late November 2023 Ms X made a stage 1 complaint, she said:
• Y’s EHC Plan had not been finalised within the 20 week statutory timescale;
• no information had been provided on the school consultation outcomes;
• Y’s trust in education had been broken, Y was out of education and needed educational provision which was not a mainstream school;
• she wanted Y to have a final EHC Plan; and
• she wanted a committed caseworker and Council support.
30. Ms X did not receive a response to her stage 1 complaint by an agreed deadline of mid-December 2023.
31. Ms X was unhappy with the Council’s actions and contacted us in March 2024.
32. In late March 2024 the Council issued its stage 1 response to Ms X and apologised for its poor communication and delays which was due to a high workload. The Council said it was working on a plan to recruit more staff and improve response times and communication. The Council apologised for not communicating the school consultation responses. It said a mainstream school could meet Y’s needs and it would not have named a special school for Y.
33. In late April 2024 the Council arranged a meeting with Ms X to discuss Y’s draft EHC Plan and issued Y’s draft plan in late May 2024. Ms X did not comment on the draft plan.
34. In late July 2024 the Council issued Y’s final EHC Plan which was based on reports it had in January 2023. The Council also sent Ms X a letter setting out her appeal rights to the special educational needs and disabilities (SEND) tribunal. Y’s Plan named a special school in Section I. Section F set out the following key provisions:
• an individual learning plan prepared by a teacher experienced in working with pupils with anxiety and autism;
• carefully planned transition back into education and a school environment;
• smaller class sizes with teachers and support staff with knowledge of children with anxiety, autism and sensory difficulties;
• a curriculum that could adapt to Y’s needs and interests;
• social interaction targets, including adult led targeted support to help Y’s social interaction and communication skills at least once a week;
• targeted adult led one-to-one sessions at least once a week to help Y with their emotions and self-image; and
• educational environment where sensory input was considered.
35. Ms X now has a right of appeal if she is unhappy with Y’s final EHC Plan.

Enquiry response

36. In response to my enquiries the Council said:
• the delay in issuing Y’s EHC Plan was because of experienced SEND staff absences;
• it had a recovery plan in place and was recruiting SEND managers and caseworkers to support the catchup programme and provide additional capacity; and
• it had recruited more officers to manage complaints and was improving complaint response times.

My findings

EHC Plan delays and missed provision

37. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
38. The Council decided to carry out an EHC needs assessment for Y within six weeks. This was within the statutory timescale and was not fault. The Council received EP advice and other professional reports for Y’s EHC needs assessment by late November 2022 and was within the statutory timescale.
39. To be in line with statutory timescales the Council should have decided within 16 weeks whether to issue Y with an EHC Plan. The Council sent Ms X its decision to issue Y with an EHC Plan within 17 weeks. This was a delay of 1 week but did not cause Ms X a significant injustice at that point.
40. The whole process should take no more than 20 weeks and should have been completed by early February 2023. The Council did not issue Y’s final EHC Plan until late July 2024. This was a delay of about 17 and a half months and was fault. It caused Ms X frustration and uncertainty about whether Y would have received support sooner. It also meant Ms X’s appeal rights were delayed.
41. The Council said in its response to my enquiries the delay in issuing Y’s EHC Plan was because of experienced SEND staff absences. I am satisfied, on a balance of probabilities, that Y’s final EHC Plan the Council issued in late July 2024 is not materially different from what it would have been if the Council issued Y’s Plan in early February 2023, when it already had the professionals advice.
42. Although Y had previously been electively home educated, when Ms X requested the EHC needs assessment she was clearly seeking a special school placement for Y. The Council, when it did issue the Plan identified provision in section F, as set out in paragraph 34, that could largely only have been provided in a school. The Council did not consider whether it should use its powers to support Ms X to provide appropriate provision for Y between February 2023 when it should have issued the EHC Plan and July 2024 when it issued the final EHC Plan, other than an offer of tutoring which it did not progress. That was fault.
43. The Council’s delay in issuing the EHC plan, and its failure to consider if the EHE provision was appropriate in the meantime meant Y missed four and a half terms special educational provision.
44. The Ombudsman has already made recommendations to this Council on a similar case. The Council has agreed to provide the Ombudsman with an action plan setting out the efforts it was making to reduce delays in the EHC Plan process and delays in the plan writing process case. On this basis no further service improvement recommendation is needed.

Communication

45. Ms X contacted the Council several times between April and May 2023 to ask for an update but was not provided with the school consultation responses or an update on Y’s EHC Plan progress. Ms X also asked for several updates between September 2023 and November 2023. Ms X’s caseworkers changed several times in this period and she was only updated once in late September 2023. The drift and poor communication was fault. It caused Ms X avoidable time and trouble and frustration. The Council has already accepted its communication was poor and apologised. It has a plan in place to recruit more staff and improve communication. However, the apology is insufficient to remedy the personal injustice caused to Ms X. I have made a further recommendation below.

Complaint response

46. Ms X made a stage 1 complaint in mid-November 2023. The Council missed its deadline to provide the response by mid-December 2023. The Council was at fault for the three-month delay in sending Ms X its stage 1 response which caused her avoidable time and trouble and frustration and it should apologise.
47. The Council has already recruited more staff to manage complaints and reduce complaints response times.
48. The Ombudsman has already made recommendations to this Council on a similar case. It agreed to remind relevant staff to ensure they provide complaint responses within the timescales. On this basis no further service improvement recommendation is needed.

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Agreed action

49. Within one month of the final decision the Council will:
• apologise and pay Ms X a symbolic payment of £10,800 to acknowledge the impact of Y’s lost provision between early February 2023 and late July 2024. This remedy was calculated at £1,200 for the spring 2023 half term and £2,400 per term between April 2023 and July 2024 and is in line with our guidance on remedies;
• pay Ms X £200 to acknowledge the frustration caused to her by its continued poor communication; and
• apologise to Ms X to acknowledge her avoidable time and trouble and frustration caused by the three-month delay in issuing the stage 1 response.

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Final decision

50. I have completed my investigation finding fault and injustice. The Council has agreed to take action to remedy the injustice. The Council has already taken actions to improve its services.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman