The Ombudsman's final decision
Summary: The Council has admitted it took too long to finalise Z’s Education, Health and Care Plan. The Council has offered Ms X £1,000 as a remedy. The Ombudsman would not recommend anything further. Z was not caused an injustice by the fault.
The complaint
Ms X complained the Council delaying in completing her son, Z’s, Education, Health and Care (EHC) Plan. Ms X says that as a result, her appeal rights to the Tribunal were delayed causing her distress and frustration and Y missed out on education.
The Ombudsman’s role and powers
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.
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) The events in this case began in January 2020 which is more than one year before Ms X complained to the Ombudsman. However, I have decided to exercise my discretion to investigate from this date. This is because Ms X took continuous action from this date to deal with the matters she has brought to the Ombudsman. In addition, during this period Ms X went to the SEND Tribunal and it is reasonable for her to have decided to wait until that had concluded before coming to us.
This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
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) If we are satisfied with a council’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) Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
I spoke to Ms X and considered her view of her complaint.
I made enquiries of the Council and considered the information it provided.
I considered the Ombudsman’s guidance on remedies.
I wrote to Ms X and the Council with my draft decision and considered their comments before I made my final decision.
What I found
Law and statutory guidance There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
Timescales and process for EHC assessment 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: where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment; and 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.
If someone successfully appeals to the SEND Tribunal about the council’s decision not to issue an EHC Plan following an assessment, the council must issue a draft Plan within five weeks of the order being made and the final Plan within 11 weeks.
What happened In April 2019, the Council received a request from Z’s primary school (School A) to assess Z for an Education, Health and Care (EHC) Plan. School A is an independent, fee-paying school. The Council refused this request in June 2019.
Ms X requested mediation and the Council received a mediation referral later in June. Subsequently, in September, the Council changed its stance and decided to carry out an EHC assessment.
The Council completed the assessment in December. The Council decided Z did not require an EHC Plan because it felt his needs could be met by School A with support from the Council and other bodies.
Ms X requested mediation again and this was held at the beginning of March 2020. The Council overturned its decision and decided to issue Z with an EHC Plan.
The Council issued Z’s draft EHC Plan on 22 April 2020. In line with Ms X’s wishes, the Council consulted with School A which Z was still attending. Ms X provided her comments in May. Also that month, the Council consulted with three non-independent schools.
School A responded to the consultation at the end of May and said it could meet Z’s needs. The Council did not receive responses from the three non-independent schools.
In November 2020, the Council consulted again with one of the three non-independent schools again (School B). School B said it could meet Z’s needs.
On 16 December 2020, the Council issued Z’s final EHC Plan naming School B. Ms X appealed to the SEND Tribunal over the naming of School B in Z’s EHC Plan. She also complained to the Council about the delays in issuing Z’s final Plan.
Z attended School A up to December 2020. During this time, the school was able to support him satisfactorily. Ms X did not send Z to School B after Christmas 2020. The time period after this date is not within our jurisdiction because Ms X appealed to the SEND Tribunal about the school named in Z’s Plan. His provision is inextricably linked to this appeal. And in any case, we would not look to remedy any missed education during this period because a placement was available at School B.
The Council responded to Ms X and said the delays were unacceptable and apologised. It explained this was because it made the decision to issue a Plan just before the country entered the first lockdown due to COVID-19. The Council said that during this period it experienced significant staffing issues because of the pandemic which impacted on its ability to meet the statutory timescales.
In its response to my enquiries, the Council said there was a significant delay of seven months in issuing Z’s final EHC Plan. It initially offered a remedy of £400 to address the time and trouble and distress caused to Ms X. It also offered an additional £200 for delays during the Tribunal process, which is a period we do not have the jurisdiction to look at.
Later in my investigation, the Council wrote to me again and said it wished to increase its proposed remedy to £1,000.
My findings
The Council has admitted it delayed in issuing Z’s final EHC Plan, causing Ms X distress, frustration and time and trouble. It has offered £1,000 to remedy this injustice. This remedies the injustice to Ms X. Z was not caused an injustice because he remained at School A, which was Ms X’s preferred placement.
Final decision
There was fault leading to injustice. The Council’s offer remedies this injustice. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman