The Ombudsman's final decision
Summary: There was fault the Council delayed issuing an Education, Health, and Care plan for Mrs X’s son. Those delays caused an injustice to Mrs X because she now has uncertainty about the possibility of her son having missed out on the school experience and education they might have had, if but for delays. The Council have already apologised and during our enquiries, it made a suitable offer of a symbolic payment that will remedy Mrs X’s injustice.
The complaint
Mrs X said the Council delayed issuing a final Education, Health, and Care (EHC) Plan for her son after it agreed it would issue one. Mrs X said this had a significant impact on her son’s schooling at an important time and he has now missed out on education as a result.
Mrs X also said the Council’s communication with her was poor, which taken together with delays, has caused her stress and inconvenience.
I will refer to Mrs X’s son as Y.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended) 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 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have not investigated I have not investigated the Council’s decision to name a particular school in the final EHC Plan. This is because this decision comes with a right to appeal to the SEND Tribunal and it would have been reasonable for Mrs X to have used this appeal right.
How I considered this complaint
I spoke to Mrs X and considered the information she provided.
I considered the Council’s comments and the documents it provided.
I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
I have considered our guidance on remedies.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
What should have happened Education, Health and Care Plan A child or young person with special educational needs (SEN) 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.
Timescales 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 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. X- 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); Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
What happened Timescales for EHC assessment In mid-November 2022, the Council agreed it would carry out an EHC needs assessment on Y. In February 2023, the Council sent Mrs X a draft EHC Plan, and it then issued a final EHC Plan in late January 2024.
In our conversation, Mrs X told me that she was unhappy with the school the Council named but did not appeal this decision.
After the Council had issued the draft EHC Plan, Mrs X made a formal complaint about ongoing delays and about poor levels of contact she experienced, particularly with caseworkers who were working on Y’s EHC Plan. The Council considered these complaints at stage one and stage two of its corporate complaints process.
The Council said it did not issue the final EHC Plan within statutory timescales, because of the increased demand on its service area dealing with EHC Plans. It also said it was trying to locate a suitable education placement for Y. The Council apologised for Mrs X’s inconvenience because of delays.
In its final complaint response, the Council also accepted it had not properly replied to her requests and the contact she had made about Y’s EHC needs assessment. It apologised to her.
My findings
Timescales for EHC assessment The Council has 20 weeks to issue a final EHC Plan after a request is made, therefore, it should have issued Y’s EHC plan in late March 2023. This would have meant it would have been ready before the start of the new academic term in September 2023, when Y was about to start year 11. It was not available until late January 2024, which was a delay of just under ten months. That is fault and the Council have accepted this fault.
This fault caused an injustice to Mrs X. Because of the delays, she was left with uncertainty about what the eventual decision about an education placement would be, for an unnecessarily long time. It has also left her with a high degree of uncertainty about how the delays may have impacted on Y’s development. Mrs X remains concerned that Y has not had the right school experience because of the delays, and this will have caused her avoidable distress.
During our enquiries, the Council made an offer of a symbolic payment, and this is a suitable offer which remedies Mrs X’s injustice here.
Mrs X also complained about poor communication and the Council have accepted this fault and apologised. That is appropriate and the Council’s actions here have remedied this injustice.
Agreed action
Within one month of the date of my final decision, the Council have agreed it will pay Mrs X £1000 as a symbolic payment to recognise her distress caused by delays, in line with its earlier offer.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation, with a finding of fault, as highlighted at paragraph 21. That fault caused an injustice, and the Council made a suitable offer which I am satisfied will remedy Mrs X’s injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman