Summary: Ms X complains the Council did not deal with her son Y’s education properly and he missed education and special educational needs (SEN) provision. The Council delayed issuing an Education Health and Care (EHC) Plan, did not include provision in the EHC Plan and its complaint response was late. Ms X suffered delay and Y missed special educational needs provision. The Council should apologise, Pay Ms X £700 in respect of delays, pay Ms X £1,800 for missed SEN provision, Pay Ms X £250 for time and trouble and provide guidance to staff.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council failed to deal with her son Y’s EHC Plan properly because it has been delayed.
2. Ms X says her son Y missed education provision for a year and has not received SEN therapy provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
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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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms 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

Law, guidance and policies

Special Educational Needs

10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
11. Where a Council does not oppose an appeal concerning a decision not to carry out an EHC needs assessment, it must make the EHC needs assessment and if necessary, issue a final EHC Plan as soon as practicable and within 14 weeks. (Special Educational Needs and Disability Regulations 2014 Reg 45)
12. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This 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 education, or name a different school. Only the tribunal can do this.
13. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
14. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act).

What happened?

15. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
16. Ms X requested the Council carry out an EHC needs assessment. The Council declined to do so. Ms X appealed to SEND Tribunal.
17. The Council agreed to complete an EHCNA before the appeal was heard. A consent order was issued in May 2023 stating the Council should undertake an EHCNA within 6 weeks and issue a final EHC Plan within 10 weeks.
18. Ms X decided to electively home educate Y from May 2023.
19. In December 2023 the Council decided to issue Y with an EHC Plan. The Council informed Ms X of this in January 2024.
20. Ms X complained to the Council.
21. The Council consulted with schools before issuing Y’s final EHC Plan in February 2024.
22. The Council upheld Ms X’s complaint in October 2024, having accepted there was a significant delay to its stage 1 complaint response.

Analysis

Elective home education

23. Ms X says she didn’t feel there was any other choice than to electively home educate (EHE) Y.
24. The Council says Y did not miss education as he was home educated. I agree with the Council. There is no evidence that Y missed education at home. There is no evidence to show the Council would not have made a school place available for Y if he was not home educated. Ms X’s decision to home educate Y because she did not agree with the outcome of the school admissions process is not fault by the Council.

Delays

25. The Council accepts there were delays to the statutory timescales in issuing Y’s EHC Plan and apologised to Ms X.
26. The Council should have issued Y’s EHC Plan in July 2023. It did so in February 2024. There was therefore a delay of approximately seven calendar months. Equivalent to one and a half terms. I agree with the Council. This is fault. Y’s EHC Plan was delayed.
27. The Council has provided evidence and accepted that the significant delay to the timeframe for issuing Y’s EHC Plan was due to delays obtaining Educational Psychology advice.
28. The Council accepted in its stage two complaint response that there was a further delay including Occupational Therapy (OT) and Speech and Language Therapy (SaLT) advice into Y’s EHC Plan. I agree this is fault by the Council. Y missed OT and SaLT provision until this was included in his EHC Plan in September 2024.

Complaint handling

29. The Council accepted there was a significant delay to its stage one complaint response. I agree this is fault by the Council. The Council apologised to Ms X and said it would pay here £100 in respect of this delay.
30. I have seen emails which show Ms X’s advocate chased the Council multiple times for a complaint response. I do not consider this to be an appropriate personal remedy.

Action by the Council

31. The Council has identified necessary service improvements as a result of Mr X’s complaint, including:
• Increasing the number of educational psychologists; and
• Creating a team of assessment officers to process EHC needs assessment;
• implementing the following strategies to improve performances: Inspection Readiness – a recent inspection preparation/mock inspection, Quality Assurance steering groups, Parent Survey engagement – monthly meetings to assess parental feedback, due to the success of these meetings as of May these are now held quarterly and staff supervision sessions.

The Ombudsman’s Guidance on Remedies

32. Where fault has resulted in a loss of educational provision, we will usually recommend a symbolic remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
33. I have taken into account the fact that Y missed some SEN provision, the fact that other SEN provision was made for part of the time, his special educational needs as detailed in his EHC Plan and comments from Ms X in determining an appropriate remedy.

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Action

34. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Ms X for the fault found. 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 Ms X £700 in respect of delays, comprising £100 per month.
• Pay Ms X £1,800 in respect of missed special educational needs provision.
• Pay Ms X a total of £250 in respect of time and trouble, inclusive of the Council’s earlier £100 remedy offer.
• Provide guidance to staff to ensure all complaints are dealt with within the timescales set out in its complaints procedure.
• Provide guidance to staff to ensure EHC Plans are issued within statutory timescales.
35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman