Derby City Council (24 002 417)
The Ombudsman's final decision:
Summary: There was fault by the Council. There was a delay of 15 months in issuing a final Education, Health and Care Plan after a needs assessment. A child did not receive any education for two terms and there is no evidence of the Council reaching a proper decision that the 2.5 days a week provision for another term was suitable. An apology, financial remedy and consulting a school on a request for the child to repeat a school year remedies the injustice.
The complaint
- The complainant, who I shall call Mrs X, complains there was delay in carrying out an Education, Health and Care (EHC) Plan needs assessment for her child, Y, and in giving her all the information about the right to appeal the plan.
- Mrs X also complains the Council did not provide any education from February 2023 until December 2023 or full-time education from December 2023 until Easter 2024.
- Mrs X also complains the Council has not updated the EHC Plan to name the current school and has not considered a request for a school year to be repeated due to the loss of education.
The Ombudsman’s role and powers
- 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)
- 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)
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
- I read the papers put in by Mrs X and discussed the complaint with her.
- I considered the Council's comments about the complaint and any supporting documents it provided.
- Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
EHC Plan assessment delay
- Mrs X requested the EHC Plan needs assessment on 30 August 2022. The EHC Plan should have been finalised on 17 January 2023. The Council did not finalise it until 12 March 2024. This is a delay of 60 weeks or 15 months. This is fault.
- Our guidance proposes a remedy of £100 for each month outside the statutory timescales which continues up to the point Mrs X received a right of appeal. The £100 a month is a symbolic payment to recognise the frustration and uncertainty caused to the family by the delay. It is not to remedy any loss of special education support to the child.
- The Council has agreed to pay £1500 for the injustice caused by the delay in the EHC Plan needs assessment.
- Also, the Council did not send the final EHC Plan, telling Mrs X of her right of appeal until 15 May 2024 when the Council responded to her stage 2 complaint. I consider the Council should make an extra £200 payment to Mrs X as her right of appeal to the SEND tribunal was delayed by a further two months.
Loss of education
February 2023 until December 2023.
- Mrs X also complains the Council did not provide any education for Y from February 2023 until December 2023. The Council has accepted that it was at fault. In response to Mrs X’s official complaint, the Council offered a financial remedy of £800 for this period. Our guidance on remedies (LGO Intranet | Guidance on remedies) says where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to recognise the impact of that loss. As Y was close to sitting his GCSE’s and received no education I consider the maximum remedy is appropriate. The Council has agreed to make a financial payment of £4400. I have reduced the maximum remedy of £4800 by £400 for the January 2023 when Y was still home educated.
December 2023 to Easter 2024
- Mrs X complains that Y did not receive full-time education from December 2023 until Easter 2024. She says the placement was 2.5 days per week at a therapeutic provision and did not provide any education. The Ombudsman would normally expect education to be full time.
- In response to my enquiries, the Council said ‘this was an oversight of the Council. The issue of appropriate education being in place has been addressed by staff training and a replacement of management’.
- There was fault by the Council, it did not properly consider whether the educational placement from December 2023 until Easter 2024 was suitable and full time. It is not possible for me to know if Y would have been offered extra tuition for this time or if the 2.5 day placement would have been deemed to be acceptable if the Council had properly considered this. So, I propose an additional financial payment of £500 as a symbolic payment to recognise Mrs X’s distress and uncertainty that the issue of added tuition to make the education full time was not considered during this period. It is not clear if Y would have been able to access more educational provision but this should have been considered.
Update to current EHC Plan
- The Council has said that it updated Y’s EHC Plan to name the current placement (from September 2024 onwards) in June 2024. Mrs X has said that she has not received this plan.
- As Y has a place at his current school and Mrs X would not have appealed the EHC Plan Mrs X has not been caused significant injustice but it is important that she has a correct EHC Plan. So, I will ask the Council to remedy this by sending her a copy of the updated EHC Plan from June 2024 or if this is not available, updating the EHC Plan with the current school at the annual review which is due shortly.
Request to repeat year 10
- Mrs X complains the Council has not replied to her request for Y to repeat year 10 at his current school due to the amount of education he has missed and to give him time to complete the two year GCSE courses. Mrs X says the school agrees that Y could repeat a year as the school has no sixth form.
- In response to my enquiries the Council said ‘it is not usual to agree a repeat of school year unless that has been agreed by the school’. I find fault on this point, as the Council has not considered Y’s individual circumstances or responded to the question. In order to remedy this injustice the Council should consult Y’s school on Mrs X’s request for Y to repeat a year. As Y’s annual review is due shortly, this will mean the request can be considered at that review.
Service improvements
- During a recent investigation by us about similar matters, the Council agreed to review both its EHC Plan and alternative provision process. Given this, I will not make further service improvement recommendations as they are being monitored on another case.
Agreed action
- Within one month of the date of the decision on this complaint the Council should:
- Apologise to Mrs X. 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.
- Pay Mrs X £6600.
- Within two months of the date of the decision on the complaint the Council should:
- Consult Y’s school on Mrs X’s request for Y to repeat a year, so it can be considered as part of the phase transfer annual review.
- Send Mrs X a copy of the June 2024 EHC Plan or ensure that she receives an updated EHC Plan naming the current school. (This could happen as part of the upcoming phase transfer annual review.)
- The Council should provide us with evidence it has complied with the above actions.
Final decision
- I have completed my investigation of this complaint. This complaint is upheld. The actions outlined above remedy the injustice to Mrs X and Y.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman