Summary: Mr X complained the Council delayed issuing an Education, Health and Care Plan (EHC Plan) which failed to name a school. The Council delayed issuing the final EHC Plan which meant Mr X paid school fees for nine weeks longer than he otherwise would have. I find fault and the Council will pay Mr X an amount equivalent to the nine weeks’ fees.

The complaint

1. Mr X complained the Council delayed issuing an Education, Health and Care Plan (EHC Plan) which failed to name a school.
2. Mr X says he had to pay for his daughter’s education for several months longer than he should have.

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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. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• considered relevant law, policy and guidance.
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

EHC Plan 

7. A child or young person with special educational needs may have an 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. 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 

8. 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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).

Appeal rights

9. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

Key facts

10. This section sets out the key events in this case and is not intended to be a detailed chronology.
11. Mr X’s daughter, Z, moved from her mainstream school to a privately funded school in July 2022 because Mr X felt the mainstream school was not meeting Z’s needs.
12. Mr X requested a special educational needs assessment in January 2023. The Council refused the request but one week later overturned the decision and began the EHC Plan process. The draft EHC Plan should have been issued by 5 June 2023 but was not issued until 17 July. The Council issued the final EHC Plan on 31 July.
13. The final EHC Plan did not name a specific school but named mainstream as a type of suitable educational institution. Although Mr X was unhappy his parental choice was not named, he did not exercise his right of appeal at that point. The Council did then consult with the private school Z was attending and the local mainstream school.
14. The private school replied to the Council on 30 August. It said was unable to offer a placement to Z as the current EHC Plan did not reflect her needs or the provision she required. It said it would be happy to consult on a placement for Z if there was an EHC Plan with additional provision including SALT and OT.
15. On 27 September the Council issued a revised EHC Plan naming a mainstream school. Mr X then used his appeal rights to challenge sections F and I of the EHC Plan. The private school is now named on Z’s EHC Plan along with SALT and OT provision.

Analysis

16. The Council was required to assess Z’s needs and issue the EHC Plan within 20 weeks of the request for an SEN assessment. The draft EHC Plan should have been issued by 29 April and the final EHC Plan by 29 May. Both the draft and final EHC Plan were issued late. This is fault.
17. Appeal rights engage at the point the final EHC Plan is issued which in this case was 31 July 2023. Mr X did not submit an appeal at that point. He waited until after an amended final EHC Plan was issued on 27 September 2023. Mr X says that he did not appeal straightaway because his representative was in active dialogue with the Council and he was led to believe the school would be named.
18. We normally expect someone to use their right of appeal if they are unhappy with a school or school type named on an EHC Plan. We can exercise discretion to investigate in some circumstances such as where there is evidence the Council is taking steps to resolve the situation or if it asks the parent to wait for a school place to become available. I asked Mr X to provide any evidence he had which showed the Council had given him reason to believe it would name his preferred school and so a reason for him not to use his appeal rights.
19. While Mr X has provided some emails between himself, the school, the Council and his representative, I have not seen any evidence which persuades me I should exercise discretion. The Council consulted with the preferred school, along with other schools, but there is nothing which amounts to an undertaking from the Council about which school it would name on the EHC Plan.
20. The fault in this case is delay of nine weeks by the Council before the final EHC Plan was issued. Mr X subsequently appealed, and the tribunal named his preferred school. I take the view that but for the delay, the school Mr X was paying for Z to attend would have been named on her EHC Plan sooner and therefore Mr X paid school fees for nine weeks longer than he otherwise would have.

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Action

21. To remedy the injustice caused as a result of the fault identified above, the Council will, within one month of my final decision take the following action:
• Apologise to Mr X;
• Pay Mr X an amount equivalent to nine weeks schools fees. Mr X should provide evidence of the amount he paid if requested to do so by the Council; and
• Remind all relevant staff of the importance of ensuring EHC Plans are issued within the statutory 20 week timescale.
22. The Council should provide us with evidence it has complied with the above actions.

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Decision

23. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman