Summary: Mrs X complained that the Council delayed issuing an Education, Health and Care Plan after a needs assessment. There was 6 months delay by the Council, which was fault. A payment remedies the injustice to Mrs X. There was also delay in providing Speech and Language and Occupational Therapy provision, which could have been provided separately to the school setting which Mrs X disputed at tribunal. An apology and payment remedies the frustration and distress, and loss of provision to Y, the child.

The complaint

1. Mrs X complains the Council did not issue an Education, Health and Care (EHC) Plan after a needs assessment in the timescales required by law.
2. Mrs X also complains there was a delay in providing the provision in Section F of the EHC Plan. She says her child, Y, has missed educational and therapeutic provision as a result.

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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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What I have and have not investigated

6. I have investigated the delay in issuing the EHC Plan and delay in providing the Speech and Language (SALT) and Occupation Therapy (OT) provision in the EHC Plan from May until July 2023.
7. The courts have established that if someone has appealed to the Special Educational Needs and Disabilities (SEND) Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
8. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
10. I have not investigated the failure to provide the provision in section F of the EHC Plan from September 2023 until September 2024, other than the SALT and OT. This is because Y had a place available at school 1 from September 2023 until July 2024 when a different school was named after the tribunal. I note Mrs X feels that Y was not on role at the school, but as it was named in the EHC Plan the school would have admitted Y if Mrs X had chosen to send them. The failure to provide the education in Section F was directly linked to the dispute over the setting and so it is out of jurisdiction. I have looked at the provision of SALT and OT during this period as the Council has shown that it was able to provide this separately.
11. I have not investigated events after September 2024 when Mrs X put in her complaint to the Ombudsman. Anything past that date will need to be considered in a separate complaint.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

14. Y had a place at a mainstream nursery school. Mrs X asked the Council for an EHC needs assessment on 1 July 2022. The Council agreed on 4 August 2022. A draft EHC Plan was issued on 12 January 2023 and a final EHC Plan was issued on 19 May 2023 naming a type of school.
15. On 11 July 2023 an EHC Plan was issued naming a resource base at primary school 1. Mrs X appealed the setting on 10 August 2023 to the SEND tribunal. Primary school 1 had a place available for Y from the Autumn term in 2023, the term before Y was due to enter reception.
16. Mrs X emailed the Council in January 2024 to say that the school had emailed her to tell her that Y was not on role at school 1. The Council replied that Y had a place available to her at the school but they were aware that Mrs X did not want her to attend.
17. Mrs X also complained in January 2024 that Y had not received the SALT and OT therapy in the EHC Plan.
18. In response to my enquiries, the Council said ‘the significant contributing factor to the delay of the EHC Needs Assessment was due to the backlog at the time of Educational Psychologist (EP) advice and information caused by the national shortage of EPs. During the same time period, the Council saw a significant increase in demand for assessments. The EP advice and information was received on 22/12/22 and a draft EHC Plan was issued three weeks later. Further significant delays were encountered as a result of the Council working with Mrs X collaboratively to prepare the final EHC Plan, with Mrs X requesting further changes to each draft EHC Plan that was issued’.
19. The SEND tribunal ordered the Council to name school 2. The EHC Plan naming this school was issued on 3 July 2024. The Council said a place was available in a class in which Y’s needs could be met from the Autumn Term of 2024. This was not in the main school as Y was too cognitively able, but in a more appropriate class.

EHC Plan needs assessment

20. 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. 
21. 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. 
• 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).

22. There was fault, as the Council took over 20 weeks to issue the final EHC Plan. The Council should have issued the plan by 18 November 2022. There was a delay of 26 weeks or 6 and a half months. I find fault (service failure) for the delay in completing the statutory assessment process causing injustice (uncertainty and frustration at the delay).
23. Our guidance recommends a remedy of £100 for each month outside the statutory timescales. 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 as they do not yet have an EHC plan.  So, I recommend the Council makes a payment to Mrs X of £650 to remedy the frustration from the delay in the EHC needs assessment process. I have also included a service improvement recommendation.

Provision in Section F of the EHC Plan.

19 May 2023 until 12 July 2023.

24. Mrs X says that Y did not receive the SALT and OT therapy in the EHC Plan for the 2 days a week she was at nursery during this period.
25. The EHC Plan included 45 minutes of direct SALT provision per month, with 40 minutes liaison and preparation time. It also included 3 hours per term from an OT to design an indirect therapy programme to be carried out by school staff.
26. The Council said Y was receiving Speech and Language Therapy from the NHS for the year September 2022 to September 2023 and they would have provided therapy in the nursery or in the community. There is no evidence that the specific OT and SALT provision in the EHC Plan was carried out when Y was in nursery.
27. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person (s.42 of The Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
28. The Code says the provision should be in place from the date the final EHC Plan is issued. Where the provision is proposed by the council in a draft EHC Plan, the Council should be ready to secure that provision when the EHC Plan is finalised.
29. In R (on the application of BA) v Nottinghamshire County Council [2021] EWHC 1348, a judicial review about the Council’s s.42 duty, the Court rejected the Council’s argument it only had to put provision in place within a reasonable time rather than immediately. The Court found the five-week period built into the SEND Regulation 44 following a Tribunal decision to issue an amended EHC Plan was designed to allow time for implementation and the bulk of the child’s provision, at least, should have been in place within that time.
30. I find fault, in that the Council did not put in place the SALT and OT in the EHC Plan for almost 2 months from 20 May 2023. At this point Y was in nursery for 2 days a week and missed at most 2 sessions of SALT and one of OT. I consider that a payment of £200 remedies the injustice for the loss of OT and SALT for this period.

September 2023 until July 2024

31. The Council has said ‘it commissioned a private Speech and Language Therapist and the sessions commenced at home in January 2024. The Occupational Therapy set out in the EHC Plan is for termly reviews only; Mrs X was informed on 27 September 2023 that OT had been commissioned and a start date would be confirmed. The first termly review of Occupational Therapy was on 9 January 2024’.
32. I find service failure in that SALT and OT therapy’s were not provided for one term from September 2023. I consider a payment of £500 remedies the injustice for the loss of OT and SALT for this period. I have not made a service improvement as the Council did put provision in place, albeit delayed.

Complaint handling

33. The Council has apologised for delays in responding to Mrs X’s stage 2 complaint occurred due to resource issues. The Council acknowledges that these delays were considerable. Unfortunately, when the notification was received that the Ombudsman was reviewing the case, Mrs X’s stage 2 complaint was closed down by the Council. The result was that a response was not issued to Mrs X, which was fault. The Council has offered a payment of £200 to Mrs X to remedy the distress from the delay. This is in line with the Ombudsman’s guidance on remedies.

Annual review

34. Mrs X complains that an annual review was not carried out within 6 months of the EHC Plan being issued on 19 May 2023. The Council has said that as Y turned 5, 5 months after the plan was issued there was no requirement for a review within 6 months.
35. However, there was no annual review carried out within 12 months. The Council acknowledges this was fault. As a new EHC Plan was issued after tribunal a month later I do not consider this fault caused significant injustice to warrant an additional financial remedy. The annual review was carried out in December 2024.

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Action

36. Within one month of the date of the decision on this complaint the Council should:
• Apologise to Mrs X for the delay in the EHC needs assessment process. 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 £1550.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I have completed my investigation and find fault causing injustice. This complaint is upheld. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman