Summary: Miss Y complained the Council delayed in issuing her son’s Education, Health and Care Plan which meant that Miss Y paid school fees for five weeks longer than she otherwise would have. We find fault and injustice which the Council should remedy with a payment equivalent to the school fees paid by Miss Y between 5 September and 10 October 2024.

The complaint

1. Miss Y complained the Council delayed in issuing her son’s Education, Health and Care (EHC) plan and as a direct result she had to pay school fees for longer than she otherwise should have.

Back to top

The Ombudsman’s role and powers

2. 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)
3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

Back to top

How I considered this complaint

5. I considered evidence provided by Miss Y and the Council as well as relevant law, policy and guidance.
6. Miss Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

EHC plans and timescales

7. A child or young person with special educational needs may have an Education, Health and Care (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. 
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)

Summary of key events relevant to the complaint

9. This section sets out the key events relevant to the complaint and is not intended to be a detailed chronology.
10. Miss Y’s son, who I will call D, has special education needs (SEN). Whilst D was at mainstream primary school, he did not have an EHC plan. In Year 6 Miss Y says D experienced a breakdown and could no longer attend school. In September 2023 D started mainstream secondary school but was unable to cope despite adjustments made by the school.
11. D attended mainstream secondary school the first two school terms.
12. Miss Y asked the Council to complete an EHC needs assessment for D on 7 February 2024. The Council completed its assessment and decided on 16 May 2024 that D needed an EHC plan to meet their SEN.
13. In the meantime, D stayed at home. Miss Y says this was due to autistic burnout.
14. The Council issued a draft EHC plan on 20 May 2024.
15. In Summer 2024 Miss Y started looking for potential schools. She identified an independent special school, and D attended the summer school for a couple of days. Miss Y said it was quickly apparent this was the correct school for D.
16. Miss Y enrolled D into the special school and remortgaged her house to pay for the fees whilst waiting for the Council to finalise D’s EHC plan.
17. On 14 September 2024 Miss Y complained to the Council about her experiences. She asked the Council to progress D’s EHC plan without further delay and requested for the special school to be named in Section I.
18. The Council responded to Miss Y’s request and said “… I have been asked to inform you that the Local Authority are only liable for fees for an independent non-maintained special school placement from the point the contract is signed, therefore we are unable to reimburse costs for the period you chose to privately place your child in the school”.
19. On 10 October 2024 the Council issued a final EHC plan naming the special school attended by D.

Was there fault in the Council’s actions causing injustice to Miss Y and D?

20. The Council had a duty to assess D’s needs and issue his EHC plan within 20 weeks of the request for the EHC needs assessment. According to the statutory timescales, the Council should have issued the draft EHC plan by 27 May 2024. The Council met that deadline because it issued a draft EHC plan on 20 May 2024. However, the Council delayed when issuing D’s final EHC plan. It should have issued this by 26 June 2024. Miss Y received the eventual EHC plan on 10 October 2024. The Council accepts that it issued the final plan after the statutory deadline and this is fault.
21. The fault amounts to 15 weeks of delay. The Council eventually named the preferred school on D’s EHC plan. I take the view that, but for the delay, the school Miss Y privately funded would have been named on the plan sooner. Miss Y therefore paid school fees for approximately five weeks longer than she otherwise should have. This is injustice in the form of financial loss which flows directly from the fault. The Council should put Miss Y back in the position she should have been, were it not for that fault.
22. The delay also caused injustice for D in the form of missed provision. If the Council had issued the plan by 26 June 2024, D could have attended school for approximately one month before the academic year ended. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment to acknowledge the impact of that loss. The Council has agreed to pay £600 to D in recognition of the missed provision.

Back to top

Action

23. To remedy the injustice caused by the fault identified above, the Council will complete the following remedial action:
• Apologise to Miss Y for the injustice caused by the delays. We publish guidance on remedies which sets out our expectations for effective apologies. The Council should consider this guidance and make the apology within one month of our final decision.
• Pay Miss Y an amount equivalent to the school fees which she privately funded between 5 September and 10 October 2024. The Council will contact Miss Y upon receipt of our final decision to seek proof of the fees paid. The Council will make the payment to Miss Y within four weeks of receiving relevant proof.
• Pay £600 to Miss Y for D’s educational benefit. This is a symbolic payment in recognition of the month of education he missed in the summer term of 2024 as a direct result of delays with his EHC plan. The Council will make this payment within one month of our final decision; and
• Remind relevant staff of the importance of ensuring EHC plans are issued within the statutory timescales. The Council will provide evidence of this to the Ombudsman in the form of a staff briefing paper, notes of a team meeting or evidence of another form of staff circular, within one month of the final decision.

Back to top

Decision

24. I find fault causing injustice which the Council has agreed to remedy with the actions listed in the section above.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman