Summary: having decided to issue an Education, Health and Care (EHC) Plan for Mr F’s son, B, the Council should have issued the final Plan by 17 May 2024. The Council has not yet issued the final Plan. We have recommended a symbolic payment to acknowledge the injustice this causes.

The complaint

1. Mr F complained about delay by the Council carrying out an order of the First Tier Tribunal to undertake an education, health and care (EHC) needs assessment for his son, B. Mr F is unhappy with the Council’s handling of his complaint.

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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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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. 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

5. I have considered information provided by Mr F and the Council. I invited Mr F and the Council to comment on my draft decision.

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What I found

6. Mr F asked the Council to undertake an education, health and care (EHC) needs assessment for his son, B. The Council refused. Mr F appealed to the SEND Tribunal. The Council changed its mind and agreed to undertake an assessment. The Tribunal made a consent order on 9 February 2024.
7. The procedure for assessing a child’s special educational needs is set out in regulations and government guidance.
8. Where the Council concedes an appeal and agrees to carry out an assessment, it must notify the child’s parent within two weeks that it will undertake the assessment. If, following the assessment, the Council decides it is necessary to issue an Education, Health and Care (EHC) Plan for the child, it must send the final Plan as soon as practicable, and in any event within 14 weeks of the Tribunal order.

Mr F’s complaint to the Council

9. Mr F complained to the Council on 26 February 2024. Two weeks had passed since the Tribunal order and he had not heard from the Council.
10. The Council acknowledged his complaint on 29 February 2024 and said it would respond by 11 March 2024.
11. Mr F complained to the Council again on 12 March 2024. He complained he had not received a response to his complaint and the Council had not followed its complaints policy. He asked the Council to respond at the second stage of its complaints process.
12. The Council responded at the first stage of its complaints process on 11 April 2024. The Council said B’s case had been allocated to a member of the SEN team who would contact Mr F as a matter of urgency and begin the assessment as soon as possible.
13. The Council apologised for the delay responding to Mr F’s complaint. The response was four weeks late. The Council got B’s name wrong in the letter.
14. The Council responded at the second stage of its complaints process on 8 May 2024. The Council said that despite the assurances in its previous complaint response, B’s assessment had not been allocated to a member of the SEN team and had not, therefore, progressed. The Council said B’s case would be allocated that day, and if the Council decided to issue an EHC Plan, Mr F could expect to receive the final Plan by 9 August 2024. The Council apologised for the delay, and for the delays in the complaints process.
15. On 27 June 2024, the Council notified Mr F that it intended to issue an EHC Plan for B.
16. The Council issued a draft Plan on 23 August 2024 and invited Mr F to request a school. Mr F was happy for B to remain at his current school with the support of the special educational provision in his Plan.
17. At the time of writing, the Council had not issued a final Plan.

Was there fault?

18. Yes. The Council has not complied with the timescales set out in the regulations. Having decided to issue a Plan, it should have issued the final Plan by 17 May 2024. At the time of writing, the Plan was already 18 weeks late.
19. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council. My recommendations are set out below.

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Agreed action

20. 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. When this is not possible, as in the case of Mr F, we may recommend the Council makes a symbolic payment.
21. Delays by the Council have caused Mr F considerable frustration. He has been to considerable lengths to pursue his complaint. There may also have been an impact on B’s education, although this is harder to quantify.
22. In these circumstances, we recommend the Council makes a symbolic payment of £100 per month of delay. The Council should have issued B’s final Plan by 17 May 2024. So, I recommend the Council pays Mr F £100 per month from 17 May 2024 until it issues B’s final Plan.
23. The Council should provide us with evidence it has complied with the above actions.
24. The Council accepted my recommendations.

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Final decision

25. I have ended my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman