Summary: Mrs X complained the Council did not issue her child’s education, health and care plan by the statutory deadline, and it failed to provide appropriate educational provision for her child. Mrs X said this meant her child lost their place at specialist educational provision, and it caused unnecessary and avoidable distress. We find the Council at fault for the delay issuing the plan and this caused injustice. The Council will make a payment to remedy the injustice. We cannot investigate the second part of the complaint because it is premature.

The complaint

1. Mrs X complained the Council did not issue her child’s education, health and care plan by the statutory deadline. She also complained the Council failed to provide appropriate educational provision for her child when they were not in school.
2. Mrs X said this meant her child lost their place at specialist educational provision and is socially isolated. She said it caused unnecessary and avoidable distress, and there has been a financial impact.

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The Ombudsman’s role and powers

3. 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)
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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. 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

8. I have investigated the first part of Mrs X’s complaint.
9. I have not investigated the second part of Mrs X’s complaint for the following reason.
10. As I have said above, we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply.
11. In this case, I have seen no evidence that Mrs X complained to the Council that it failed to provide appropriate educational provision for her child when they were not in school. I have also seen no evidence that the Council has considered or responded to this complaint.
12. As above, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. In this case, I consider it is reasonable to allow the Council the opportunity to respond to this part of Mrs X’s complaint. I have asked the Council to put this part of the complaint through its complaints procedure and contact Mrs X about it as soon as possible.

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How I considered this complaint

13. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
14. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

15. 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.
16. 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 that if a council decides to issue an EHC plan after an assessment, the whole process from the point an assessment is requested until the final EHC plan is issued must take no more than 20 weeks.  

What happened

17. In June 2023, the Council received a request for an education, health and care (EHC) needs assessment for Mrs X’s child, B. In August, the Council made its decision to issue an EHC plan for B.
18. Mrs X complained in December.
19. The Council acknowledged it missed the statutory deadline to issue B’s EHC plan and apologised. The Council said if Mrs X wanted, it could issue the EHC plan naming the type of setting only. This meant the Council would not name the actual setting B would go to. The Council said the type of setting would be mainstream, not specialist. The Council said alternatively, it could wait to issue the EHC plan until it had finished talking to possible educational settings.
20. Mrs X responded to this, saying the Council said in December it would not pursue a mainstream setting for B. She said mainstream would not be suitable for B. Mrs X said she would wait until a suitable placement had been found.
21. In May 2024, the Council issued the EHC plan.

Analysis

22. The guidance is clear: the whole process from the point an EHC assessment is requested until the final EHC plan is issued must take no more than 20 weeks.
23. An EHC assessment was requested in early June 2023. The Council should have issued the EHC plan by late October. The Council issued the EHC plan in May 2024. This is a delay of seven months and is fault. I find this fault caused Mrs X injustice caused it delayed her right to appeal the plan.
24. The Council should not have asked Mrs X if she wanted to delay issuing the final plan until it had found a suitable placement for B. The Council knew Mrs X wanted a specialist placement for B, but the Council intended to name a mainstream setting. The Council should have issued B’s EHC plan naming the type of placement as mainstream. This would have given Mrs X the right to appeal the type of setting the Council believed was appropriate for B.
25. I am satisfied the Council has apologised for the delay issuing this plan.

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Agreed action

26. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £700. In arriving at this figure, I have taken into account our published guidance on remedies. I consider a payment of £100 per month of delay is appropriate and proportionate to the level of injustice caused. £100 per month multiplied by seven months is £700.
27. The Council should provide us with evidence it has complied with the above action.

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Final decision

28. I have completed my investigation. I uphold the first part of Mrs X’s complaint because there is fault causing injustice. The Council has agreed to make a payment to Mrs X to remedy the injustice caused.
29. I cannot investigate the second part of Mrs X’s complaint. This is because it is premature.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman