The Ombudsman's final decision
Summary: Mrs X complained the Council significantly delayed issuing her daughter, Y’s Education, Health and Care (EHC) Plan between December 2018 and April 2021 after she transitioned from a Statement of Special Education Needs. The Council was at fault. It delayed issuing Y’s EHC Plan by 16 months which subsequently delayed Mrs X’s right of appeal to the SEND tribunal. It meant Y lost out on 1:1 provision between January 2020 and July 2021. The Council further failed to ensure Y received Speech and Language Therapy in line with her plan between March and July 2022. It agreed to pay Mrs X a total of £4,325 to acknowledge the impact the faults had on Y’s education during this period.
The complaint
Mrs X complains about significant delays in issuing her daughter, Y’s, Education, Health and Care (EHC) Plan between December 2018 and April 2020. Mrs X said had the Council issued the Plan within statutory timescales then she could have appealed to the SEND tribunal sooner and it is likely Y would have had 1:1 provision much earlier.
Mrs X further complains: The Council delayed putting in place 1:1 provision between May and July 2021 following a decision by the SEND tribunal to include it in Y’s Plan.
The Council has not provided music therapy in line with Y’s Plan since September 2021 Y has not received Speech and Language Therapy in line with her Plan from March 2022 to date.
Mrs X says the Council’s faults and loss of provision have caused Y a loss of educational and social opportunity and impacted on her development.
The Ombudsman’s role and powers
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) 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.
When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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) 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 Mrs X about her complaint and considered information she provided.
I considered the Council’s response to my enquiry letter.
Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.
What I found
Statement of Special Educational Needs A statement of Special Educational Needs (SEN) was a legal document which set out a child’s educational needs the help and support they required at school. Education, Health and Care (EHC) Plans replaced Statements of SEN as a result of the Children and Families Act 2014. This involved the council carrying out an EHC needs assessment which took a maximum of 20 weeks. All councils should have completed the process for children in their area by April 2018.
Education, Health and Care (EHC) Plan Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
Councils are responsible for making sure all the arrangements set out in in the EHC Plan are put in place.
The Council has a legal duty to ensure the educational and social care support set out in a final EHC plan is delivered. This duty is non-delegable. The local health care provider will have the duty to deliver the health care provision.
EHC Assessment process and timescales 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; 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; 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); and councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
The SEND Tribunal Certain decisions related to special educational needs (SEN) have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
Some of the decisions which are appealable and usually out of our jurisdiction include about the provision specified in section F of the EHC Plan.
Due Diligence We expect Council’s to do due diligence when a new or substantially amended EHC Plan is issued to check provision is in place, but it is not practical for councils to keep a ‘watching brief’. We would look for evidence the Council was aware provision was not in place.
The Coronavirus Act 2020 When England entered a national lockdown on 23 March 2020 schools were closed to the vast majority of children. They remained open only to vulnerable children, and children of specified key workers. Children with EHC Plans were included in the Government’s definition of potentially vulnerable children. Councils were advised to carry out risk assessments, to decide whether a child with an EHC Plan would be safer in a school setting. The aim of the measure was to ensure the child’s safety, rather than to ensure they received their normal educational entitlements.
The changes meant the absolute duty of councils to secure or arrange provision set out in section F of an EHC Plan was modified to a duty to use ‘reasonable endeavours’ to do so. These changes were applicable until 31 July 2020.
Our general view is that we are unlikely to criticise a Council for not arranging the full provision in an EHC Plan from 23 March to 1 May 2020, despite the fact they remained under a statutory duty to do so until 1 May.
What happened Mrs X has a child, Y, who has SEN and disabilities. In 2018 Y attended primary school and had a Statement of SEN. In September 2018 the Council started an EHC assessment for Y to transition them to an EHC Plan. In line with statutory timescales this meant the Council should have issued Y’s final EHC Plan by December 2018. Mrs X she wanted 1:1 provision and other support and therapies included in the EHC Plan.
The Council issued Y’s final EHC Plan April 2020. The Council said the process took that long was because of delays in obtaining advice from professionals and discussions and comments from Mrs X which resulted in it issuing three draft plans.
Y continued attending school during this period until the start of the COVID-19 lockdown in March 2020. Mrs X said Y did not attend school between March and July 2020 but had limited virtual teaching and some therapy sessions.
Mrs X was unhappy with Y’s final EHC Plan, specifically the provision outlined in section F. Mrs X wanted Y to have music therapy and was unhappy the Plan did not include a 1:1 support assistant. Mrs X was also unhappy generally with some of the wording and detail outlined in the Plan which she said did not include any specific provision to meet Y’s needs.
Mrs X appealed to the SEND tribunal in June 2020 however she agreed to enter mediation with the Council over her concerns in July 2020. Records show a mediation agreement was produced to address some of Mrs X’s concerns, however she Mrs X took her appeal back to the SEND tribunal on the same date.
The tribunal decided Mrs X’s case in April 2021. Tribunal records show the outstanding issue to resolve was around Y’s 1:1 support. The tribunal ordered the Council to change section F to include a full-time 1:1 teaching assistant for Y. Y’s amended EHC Plan also included provision for weekly music therapy and sessions with a Speech and Language Therapist (SALT) at least once a week.
Following the tribunal, the Council issued Y’s amended EHC Plan in June 2021, five days later than allowed by statutory timescales. Records show the Council placed an advert for a teaching assistant however it was unable to put one in place for the remainder of the academic year. Y’s 1:1 provision started from September 2021 onwards.
Email records show Mrs X contacted Y’s music therapist in January 2022 questioning how much music therapy Y had received during the autumn term. The music therapist told Mrs X she did not have capacity to see Y every week and was now booked up until the end of February. Mrs X said she raised the lack of music provision with the Council, however, the Council told us it has no records showing provision as stated in the Plan was not in place. Mrs X did send an email to the Council prior to an annual review in March 2022 citing ‘there is still provision that is not yet taking place’.
Mrs X complained to the Council during 2021. She complained about the delays in issuing Y’s EHC Plan between 2018 and 2020. She complained about the stress caused by appealing to the SEND tribunal. She said the Council’s failure to include various reports and advice in the Plan meant the provision was inadequate and it failed to progress actions on the mediation agreement. She further complained the Council failed to put in place 1:1 support following the conclusion of the tribunal process.
The Council responded to Mrs X and apologised for the delays in issuing Y’s final Plan. It said Y continued attending school during that period and received SEN provision. It said the new provision was as a result of information obtained during the tribunal process and therefore was not available during the period of delay. It offered Mrs X a payment of £500 to recognise the impact the delay had on her and Y. The Council said it was unable to progress the mediation agreement because Mrs X appealed to the tribunal immediately after, giving it no time to carry the actions out. It said disagreements around provision were for the SEND tribunal to resolve and Mrs X used that right.
Mrs X remained unhappy and complained to us. She said Y would have received 1:1 provision much sooner had the Council issued their EHC Plan in line with statutory timescales.
Following her complaint to us Mrs X further complained the Council had failed ensure Y received SALT provision from March 2022 onwards after the therapist left.
The Council told us Y received SALT in line with their Plan between September 2021 and February 2022. In February 2022 the SALT left their role. The Council said it had recruitment issues and then the new SALT said they could not begin sessions with Y until they knew them. The Council said Y’s SALT provision would begin again as normal from September 2022 onwards.
My findings
The Council carried out an EHC assessment in 2018 to transition Y from a Statement of SEN to an EHC Plan. In line with statutory timescales the Council accepts it should have issued the final Plan by December 2018. The Council issued the final Plan in April 2020 which is a significant delay and is fault. It caused Mrs X and Y distress and frustration and delayed Mrs X’s right of appeal to the tribunal.
Had the Council issued the Plan in December 2018 it is likely, on balance that Mrs X would have appealed to the SEND tribunal at the earliest opportunity, so by March 2019. Taking the length of time Mrs X’s actual appeal took, this means it is likely on balance that the SEND tribunal would have decided the matter by December 2019. This means Y would have had 1:1 provision in place by January 2020 had there been no delay.
The Council delayed issuing Y’s amended EHC Plan following the SEND tribunal by five days. That was fault but the minor delay did not cause Mrs X a significant injustice. However, the Council failed to put in place Y’s 1:1 support following the tribunal order which meant Y missed out on the 1:1 support for the remainder of the academic term between May and July 2021. The Council has also accepted that Y missed out on SALT between February and July 2022 after the therapist left the role which is further fault. We recognise the Council had difficulty sourcing a teaching assistant and replacing the SALT but the Council’s duty to secure SEN provision is absolute and there is no defence for ‘best endeavours’.
As part of Y’s EHC Plan, Y was entitled to weekly music therapy. It is clear from the evidence that the music therapist was unable to provide weekly sessions and the provision delivered was not consistent with the Plan. It is not clear when Mrs X raised this specific issue with the Council but records show she raised issues of general non-provision with it in March 2022. At this point we would expect the Council to carry out due diligence. It did not and that was fault. Had it done so it could have made efforts to resolve the lack of weekly music therapy sessions. The Council said music therapy is now in place funded by a personal budget.
Injustice The Council has apologised and paid Mrs X £500 to recognise the frustration and upset caused by the delay in issuing Y’s EHC Plan between 2018 and 2020. However, it has not remedied the injustice caused to Y. The delay in issuing Y’s EHC Plan meant Y missed out on 1:1 provision between January 2020 and July 2021. Y did not attend school between March and July 2020 because of COVID-19 however, had the EHC Plan been in place the Council would have been in a better place to use reasonable endeavors to ensure Y received provision in line with their Plan.
Y suffered further injustice when the Council failed to ensure Y received SALT provision between February and July 2022 and failed to carry out due diligence checks after Mrs X raised concerns about a lack of provision in March 2022.
Agreed actions
Within one month of the final decision the Council agreed to: pay Mrs X a total of £3,900 to acknowledge the impact on Y’s education when they missed out on 1:1 provision between January 2020 and July 2021 caused by the delay in issuing their EHC Plan between 2018 and 2021.
pay Mrs X a total of £425 to acknowledge the impact on Y’s education by the loss of SALT provision in line with her EHC Plan between March and July 2022. This payment also reflects the uncertainty Mrs X was caused by the Council’s failure to carry out due diligence when Mrs X raised concerns about a lack of provision in March 2022.
Final decision
I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.
Investigator's decision on behalf of the Ombudsman