Summary: Mrs X complained about the Council’s delay in issuing a final Education, Health and Care Plan for her son. We have found fault causing an injustice. The Council has agreed to the recommended ways to remedy this. Therefore, we have completed our investigation and are closing the complaint.

The complaint

1. Mrs X complained that the Council delayed in issuing a final Education, Health and Care (EHC) Plan for her son, Y, and the Council has only agreed to reimburse school fees at School Z (which the complainant paid) from November 2023 when the Council named this school as a suitable placement in Y’s final EHC Plan.
2. Mrs X considers the Council should reimburse the school fees and transport costs from the beginning of the September 2023 term.
3. Mrs X says that the Council’s delays and lack of communication has caused her and her family avoidable distress and frustration. She has had to approach her Member of Parliament, MP, ask a solicitor to write to the Council and make a formal complaint to resolve her concerns.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 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 the final decision with Ofsted.

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What I have and have not investigated

7. I have investigated events from January 2023 when Mrs X requested an EHC needs assessment to December 2023 when the Council issued a final EHC Plan.

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How I considered this complaint

8. I have spoken to Mrs X on the telephone and made enquiries of the Council.
9. I issued a draft decision statement to the Council and to Mrs X. I have taken into account any comments before reaching a final decision.

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What I found

Special educational needs

10. 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 needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.
11. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

Key facts

12. This is a brief account of the facts.
13. Mrs X requested an EHC needs assessment in January 2023, providing an Educational Psychologist’s (EP’s) report which she had obtained privately. The EP report was dated December 2022. The Council agreed to assess in March 2023.
14. The EP report referred to Y having social, emotional and mental health difficulties, and attention deficit hyperactivity disorder (ADHD).
15. Mrs X also says Y had significant hearing problems as a child. Mrs X asked the Council to arrange a Speech and Language Therapy (SALT) assessment. But it did not. The Council says this was because the previous assessment provided by Mrs X indicated that Y’s speech was in the ‘normal range’.
16. Mrs X says she constantly contacted the Council from March 2023 onwards to try to find out what was happening with her request for a needs assessment. In August 2023, in the absence of progress, Mrs X made a formal complaint.
17. In September 2023, the Council agreed to issue a draft EHC Plan. The Council says that, at this point, it considered that there needed to be discussions about whether Y could manage in a mainstream or specialist school.
18. Mrs X says that she found an independent secondary special school, School Z, which she thought was suitable for Y. School Z told her that it could not accept Y half-way through the September 2023 term because it was very important for a pupil, when transitioning to a new secondary school, to start at the beginning of the term with the other new pupils to ensure a good transition.
19. Mrs X decided to place Y at School Z, starting in September 2023, because otherwise Y would have lost his place there. Mrs X paid the fees for this term and met the travel costs.
20. The Council says that it was unaware that Z would lose the school place unless he started at the beginning of September 2023.
21. In the absence of the Council arranging a SALT assessment, Mrs X obtained a private report which the Council considered in November 2023. It agreed to include this in Y’s EHC paperwork. The Council issued a draft EHC Plan in mid‑November 2023 and consulted two mainstream schools.
22. In its consultation documents to the schools, the Council recorded Y’s needs, among others, as follows: ADHD (medicated) with associated difficulties in attention & listening, emotional regulation, anxiety, dyslexia, executive function difficulties in attention, organisation, emotional regulation, sensory processing, anxiety and specific learning difficulties in working memory.
23. These were some of the difficulties which the EP had referred to in her report of December 2022.
24. One school consulted stated it could not admit Y: the other, as far as I can see, did not respond.
25. In December 2023, the Council issued a final EHC Plan, naming School Z.

The Council’s comments

26. The Council says it should have issued a final EHC Plan by mid-June 2023. But a final Plan was not issued until December 2023.
27. The Council’s says the initial delay was caused by a national shortage of EPs to carry out assessments. Mrs X had asked in May 2023 for the Council to use her privately obtained EP report. But it was not until August 2023 that the Council agreed to this. The Council has now updated the information on its website.
28. As part of the Council’s consideration of Mrs X’s complaint, it agreed to reimburse the school fees from November 2023 when it accepted the SALT report. Prior to this, the Council says the evidence was that Y’s needs could be met in mainstream school with additional funding. The Council also says that, in accordance with the SEN Code of Practice, fees are only paid when the final EHC plan is issued. The Council has agreed to reimburse the cost of the EP report which Mrs X commissioned.
29. From January 2024, the Council has met the cost of the School Z placement and Y is travelling on the school bus.

Findings

30. The Council should have issued a final EHC Plan by mid-June 2023. It did not do so until December 2023, some six months over the statutory timescale. That is fault.
31. What injustice has this caused? Mrs X has been caused avoidable distress, time and trouble and frustration in chasing up the Council to progress the EHC planning process within the statutory timescales.
32. The Council has now agreed to reimburse the school fees from mid-November 2023. Mrs X considers it is reasonable for it to reimburse from the beginning of September 2023 when she placed Y at School Z and to meet her travel costs.
33. The crux of the issue is whether Mrs X should be reimbursed for the costs she has incurred in sending child to School Z prior to the school being named in Y’s EHC Plan.
34. The Council’s argument is that it was not until mid-November 2023, when it received the SALT report, that Y’s needs were known, and that Y required a specialist placement.
35. But the EP report, which Mrs X sent to the Council in January 2023, was very comprehensive and it provided a lot of detail about Y’s difficulties. I do not accept that the Council did not have such information earlier and that it was unaware of the extent of Y’s difficulties.
36. Also, the Council should have decided on placement issues by mid-June 2023 when issuing the final EHC Plan. The Council should have had all the necessary information about Y’s difficulties by this stage. Given all the facts of this case and, on the balance of probabilities, I consider that the Council would have named School Z in mid-June 2023 (but for its delays).
37. So, I consider that Mrs X had been caused additional injustice, over and above avoidable distress, in that she has had to meet school fees and travel costs for the September 2023 term.

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Agreed action

38. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
39. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
40. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
41. Within one month of the final statement, the Council will:
1. apologise to Mrs X for the faults and injustice caused in accordance with our guidance;
2. pay Mrs X the school fees for the September 2023 term which she paid, minus any reimbursements made; and
3. pay Mrs X her travel costs for that term.
42. This year, we have made a number of service improvement recommendations concerning the Council’s EHC planning processes. Therefore, I do not consider it is necessary to do so on this complaint.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have found fault causing an injustice. The Council has agreed the recommended ways to remedy this. I have therefore completed my investigation and am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman