The Ombudsman's final decision
Summary: Mrs X complained about delay in issuing an Education, Health and Care Plan, delay following the Tribunal hearing and failure to provide specific provision causing distress and frustration. There was delay in issuing the final Education, Health and Care Plan and some of the provision named in it was not provided. A suitable remedy for the injustice caused by this fault is agreed.
The complaint
Mrs X complains the Council: failed to issue the initial Education, Health and Care Plan (EHC Plan) within the statutory timescales; failed to issue the final amended plan within the statutory timescale after the tribunal decision; and failed to ensure provision detailed in Section F of the final plan was provided specifically weekly Speech and Language Therapy (SALT) sessions and six 45 minute sessions with a sensory integration trained occupation therapist (OT).
Mrs X says this has caused distress and frustration to all the family.
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 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) 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)
How I considered this complaint
As part of the investigation, I have: considered the complaint and the documents provided by the complainant; made enquiries of the Council and considered the comments and documents the Council provided; discussed the issues with the complainant; sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.
What I found
Timescales and process for Education, Health and Care Plan 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.
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.
The EHC Plan is set out in sections which include: Section B: Special educational needs.
Section F: The special educational provision needed by the child or the young person.
Section I: The name and or type of educational placement Key facts The Council received a request for a special educational needs assessment for Mrs X’s daughter, Y, in November 2021. The Council declined to assess Y and informed Mrs X of this decision on 24 December 2021. Mrs X exercised her right of appeal against this decision and following mediation, the Council conceded and agreed to produce an EHC Plan.
There are statutory timescales for completing an assessment and issuing an EHC Plan as explained in paragraph eight above. The Council accepts it failed to meet the statutory timescales and that it issued the EHC plan 34 weeks late on 13 October 2022.
As a result of the Council’s delay in completing and issuing the EHC Plan, Mrs X’s appeal rights were delayed. Appeal rights engaged on 13 October when the Council issued the final EHC Plan. Mrs X did not submit an appeal until December 2022. She says this was because she wanted the Council to include certain documents with the final EHC Plan. While I acknowledge Mrs X wanted certain documents to be included for consideration by the tribunal, I am not persuaded it was essential and so do not consider any delay or failure by the Council to do this was fault.
Mrs X appealed sections F and I of the EHC Plan. The tribunal was held on 24 May 2023 and it issued the decision on 1 June. The Council issued the final EHC Plan on 6 July. Mrs X made representations to the Council because she considered some information agreed by the Tribunal had not been included in the final EHC Plan. The Council made some amendments and issued an amended final EHC Plan on 24 August.
Mrs X paid for Y to attend an independent school while appealing the EHC Plan. Following the tribunal decision in June 2023, the independent school was named on Y’s EHC Plan and so the Council paid the fees and the family paid for the transport costs. The Council is responsible for securing the special education provision in an EHC Plan. While it can ask a school to make the arrangements, the duty remains with the Council.
Mrs X says that not all the provision named in Section F of the EHC Plan has been provided from September 2023. In particular she says SALT and sensory OT provision were not provided. The annual review of Y’s EHC Plan started in October 2023. No-one from the Council attended the annual review meeting held on 11 October. Notes of that meeting say the Speech and Language Therapist has been away “so sessions to start soon”.
As part of my investigation, I made enquiries to the Council and asked it to evidence the action it had taken to ensure the provision in Section F of the EHC Plan was being provided. The Council has not provided any evidence to show what action it took or that the provision was delivered.
Analysis The Council accepts it failed to issue the EHC Plan within the statutory timescales. This is fault. It says the final EHC Plan was issued 34 weeks late. This meant Mrs X’s right of appeal was delayed, causing frustration and uncertainty. A remedy for this injustice is recommended below.
Mrs X used her right of appeal in respect of Section F, special education provision and Section I, the name of the educational institution. As Mrs X used an alternative remedy to challenge the Council’s decisions about the provision and placement for Y, we cannot look at either the decision or the consequences of that decision. I therefore cannot consider the injustice to Y caused by the lack of special education provision from the date the appeal rights arose, 13 October 2022, to the date of the tribunal decision, 1 June 2023.
Mrs X also complained the Council did not issue the final EHC Plan within the statutory timescale after the tribunal decision. Mrs X believes it should have been issued within two weeks. The Council says that it had five weeks to issue the final amended EHC Plan and that it met this timescale.
The Special Educational Needs and Disability Regulations 2014 set out the statutory timescales for amending and issuing an EHC Plan following a tribunal. The regulations say the council should issue the amended EHC Plan within two weeks where there is an amendment to the name or type of educational institution and within five weeks where there is an amendment to the special education provision. The legislation is not specific on the timescale when both amendments are required.
The Council says that in this case it made the decision to cover both issues within the five week deadline for amendments rather than issuing two separate updated EHC Plans. As the legislation does not specifically cover the situation in this case, I cannot say it was fault for the Council to take the action it did. However, I note the Council missed out some of the tribunal’s recommendations from the EHC Plan issued on 6 July and it took a further seven weeks to issue the correct version. This is fault.
While there is fault, I am not persuaded this caused a significant injustice. The incorrect final EHC Plan was issued on 6 July 2023 and Y’s term finished on 8 July. As Y was on school holiday for the time covered by the seven week delay, this did not result in any lost provision.
Mrs X says the SALT and OT was not provided from September 2023 as required by the EHC Plan. The SALT is a weekly one to one session for a minimum of 30 minutes. The OT is for six 45 minute sessions during the year. At the annual review meeting on 11 October 2023 it was noted the SALT had not begun. While the Council may have expected the school to arrange the SALT and OT, the duty lies with the Council. In response to my enquiries it has not provided any evidence to show that it took action to ensure the provision in the final amended plan is in place. This is fault.
Agreed action
To remedy the injustice caused by the fault identified above the Council will, within one month of my final decision, take the following action: Apologise to Mrs X and Y; Make Mrs X a symbolic payment of £500 to recognise the distress, frustration and anxiety caused; Make a payment of £250, to be used for the benefit of Y, to recognise the impact of the missed SALT sessions; If not already taking place, ensure weekly SALT sessions begin immediately; and Take action to ensure the six OT sessions are carried out as required by the EHC Plan.
I am not recommending any service improvements in this case as the Ombudsman has made recommendations in other cases that address the issues identified in this case. This includes action to address the lack of OT and SALT in its area.
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 for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman