Summary: Mr F complained about delay by the Council completing an education, health and care (EHC) needs assessment for his daughter, G. The Council upheld his complaint, apologised and offered a payment of £500 for the time, trouble and distress the delay caused. We have recommended a remedy for the impact on G’s education.

The complaint

1. Mr F complained about delay by the Council completing an education, health and care (EHC) needs assessment for his daughter, G.
2. The Council upheld his complaint, apologised and offered a payment of £500 for the time, trouble and distress the delay caused.
3. Mr F is unhappy with the Council’s response.

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The Ombudsman’s role and powers

4. 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)
5. Once 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 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

7. 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

8. Mr F asked the Council to undertake an education, health and care (EHC) needs assessment for his daughter, G, on 3 December 2023. The Council issued G’s EHC Plan on 5 July 2024.

Mr F’s complaint to the Council

9. Mr F complained to the Council on 24 March 2024. He complained the Council had not met the statutory timescales. He said he had requested a meeting with the Council and asked the Council to obtain specialist advice in relation to G’s selective mutism. He said G had been out of school for three and a half months.
10. The Council responded on 3 July 2024. The Council apologised for the delay. The Council said it had experienced unprecedented demand for assessments. The Council suggested Mr F make a referral to the NHS Speech and Language Service for advice about selective mutism.
11. Unhappy with the response, Mr F asked the Council to respond at the second stage of its complaints process. Mr F set out his complaint in detail.
12. The Council responded on 19 August 2024. The Council upheld all of Mr F’s complaints. The Council offered a payment of £500 to acknowledge the delays in the EHC needs assessment (time, trouble and distress). The Council agreed to commission specialist advice on selective mutism and said it would review G’s EHC plan in light of the advice received.
13. The Council noted Mr F disagreed with G’s EHC Plan and advised Mr F of his right of appeal to the SEND Tribunal. Nevertheless, the Council said it wanted to work with Mr F to address his concerns.
14. Mr F was unhappy with the response and complained to us.

What period does my investigation cover?

15. My investigation begins with Mr F’s request for an EHC needs assessment on 3 December 2023. My investigation ends with the Council’s final response to Mr F’s complaint on 19 August 2024.

Education, Health and Care Plans: the law

16. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
17. The Council must complete the process and issue a Plan within 20 weeks.
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s Education, Health and Care Plan.

What went wrong?

19. Mr F asked the Council to undertake an EHC needs assessment for G on 3 December 2023. Following the assessment, the Council agreed to issue an EHC Plan. The Council should have issued the Plan by 22 April 2024. The Council issued the Plan on 5 July 2024. This was 10 weeks late. The Council did not meet the statutory timescales. This is fault.
20. During the assessment, Mr F asked the Council to obtain advice about G’s selective mutism. At the time the Council refused, but the Council acknowledged this had been wrong at the second stage of its complaints process. The Council agreed to commission specialist advice and review G’s EHC Plan in light of the advice received.
21. Without the specialist advice, it could be said that the 5 July 2024 EHC Plan was incomplete and may not be complete until the Council has reviewed the Plan in light of any advice received. It will not be possible to say until the Council has reviewed G’s Plan. This creates considerable uncertainty, and Mr F is understandably concerned about the impact on G’s education.

What was the impact?

22. 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.
23. G’s EHC Plan was 10 weeks late. She should have had the support set out in the Plan 10 weeks sooner. I understand G’s EHC Plan says she will remain a pupil at a mainstream secondary school.
24. By the time the Council issued the Plan, however, G had stopped attending school and the school was arranging alternative provision. In its complaint response, the Council agreed to fund more alternative provision, including online learning.
25. If the Council had issued G’s Plan on time, and met with Mr F during the assessment as he requested, then the outcome agreed following his complaint – the selective mutism assessment and the increased alternative provision – could have been agreed sooner.
26. On balance, I consider it likely the Council would have agreed to the selective mutism assessment before issuing G’s EHC Plan, and would have agreed increased alternative provision from late April 2024 when it should have issued the Plan.
27. I recommended a remedy. My recommendations are set out below.

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Agreed action

28. 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 and G, we may recommend the Council makes a symbolic payment.
29. I welcome the Council’s acknowledgement of fault in its final complaint response, and its symbolic offer of £500 for the impact of the delays. Mr F described the stress of dealing with the Council and his concern for G’s education as a result of the delays. The payments offered by the Council are broadly in line with our published guidance for time, trouble and distress. There is no formula I can use to calculate a financial remedy for the impact of the delays on G’s education. Indeed, the full impact may not be known until the Council has reviewed G’s Plan in light of the specialist advice on selective mutism.
30. To acknowledge the impact on G’s education, I recommended the Council:
• apologises to G and her parents for the faults I have identified;
• offers a further symbolic payment of £1,200 to acknowledge the additional provision that could have been in place for the summer term; and
• when reviewing G’s EHC Plan following receipt of the selective mutism advice, considers whether additional provision needs to be made to make up for the impact of any delay.
31. The Council should make the apology and payment within six weeks of my final decision. The Council should send evidence it has completed the above actions.
32. The Council accepted my recommendations.
33. We can also make recommendations to ensure similar faults do not happen in the future.
34. The Council was recently inspected by Ofsted. Ofsted identified problems and required the Council, and its partners, to submit an action plan. Ofsted will carry out a further inspection to monitor progress. I will not, therefore, make further recommendations.

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Final decision

35. I have completed 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