Summary
We uphold a complaint about a delay in issuing a child’s final Education Health and Care Plan and about poor communication with the child’s parents. The Plan was five months late which is fault. Communication was not in line with our expected standards. This is fault causing avoidable distress, uncertainty and delaying rights of appeal. The Council will apologise, make payments and take action set out in this statement to minimise recurrence.
The complaint
Ms X complained the Council delayed meeting the timescales for issuing her child Y’s draft and final Education, Health and Care (EHC) Plan. She said the Council’s communication with her was poor.
Ms X said this caused avoidable distress and the delay meant Y may have missed out on getting her preferred school placement.
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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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
I considered the complaint to us, the Council’s response to the complaint and information from Ms X. I discussed the complaint with her.
Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance We expect local authorities to deal with people helpfully, promptly and sensitively. (LGSCO Principles of Good Administrative Practice) A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s SEN and arrangements to meet them.
Guidance 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 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). (Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (‘the Code’) What happened Y has SEN and is attending nursery. He is due to start school in September 2024. Ms X applied for an EHC Plan for Y on 15 April 2023.
Ms X complained to the Council several times between September and December 2023 about the EHC Plan being late. The Council upheld the complaints and apologised. It said: It was sorry it did not meet the timescales; Y’s final plan should have been issued on 2 September 2023; It would take action to progress the case so as to confirm Y’s provision and placement by the time he starts school in September 2024; The Council issued a draft plan on 6 October. She asked for minor changes; The changes in case worker due to staff turnover and sickness had not helped communication issues. Communication with her was not up to the expected standards; The new case officer is aware of her preferred placement in a special school and Y was on the ‘tracker’ for this. The case officer was also aware she had identified a mainstream placement should the Council not agree a special school; A placement decision would be made by February 2024; There had not been a panel meeting. There was confusion about terminology. The case needed to go to the ‘placement decisions meeting’ which has yet to be confirmed; and It was aware School A was the preferred placement. The SEND team was working with specialist settings to confirm spaces that would be available in September.
I have summarised the provision in Section F of Y’s draft EHC Plan. This said Y needs: Visual supports support from a trusted adult, small group learning; Regular movement breaks, access to a safe space when overloaded, sensory play activities 3 times a week; Toileting plan, support to access meal times.
Ms X provided us with a written chronology of her attempts at contacting the Council’s SEND team. She said: She made 24 calls to the SEND team between August and the middle of December 2023; She called a named officer 21 times between October and November. She said there was often no answer to the calls. She emailed the same officer 5 times in October; She emailed the SEND assessment team three times in August and in the middle of October received an email setting up a call with an officer; and The named officer told her the case needed to go to the panel in November and she would get an update within 48 hours. There was no update as of the middle of December.
The Council issued Y’s final EHC Plan at the end of January 2024 naming the mainstream setting that is Ms X’s preferred school.
Findings
The Council accepts Y’s final EHC Plan should have been issued at the start of September 2023 to comply with the 20-week timescale in the Code. It issued a final Plan at the end of January 2024. This delay of five months is fault causing avoidable distress and uncertainty about Y’s school placement as well as a loss of special educational provision. It also delayed the parental right of appeal to the SEND Tribunal, although Ms X has not appealed. But the delay in appeal rights caused additional frustration.
Communication has been woefully inadequate and not in line with our expected standards. This is fault causing avoidable frustration and distress.
Agreed action
Within one month, the Council will: Apologise again for the avoidable distress, frustration and uncertainty. The apology should be in line with our published guidance; Make Ms X a payment of £200 to reflect the avoidable distress and uncertainty caused by poor communication and the failure to issue the final Plan on time; Make Y a payment of £1200 to reflect a loss of a term and a half of special educational provision that he would have been getting at nursery school had the Council issued the EHC Plan in September 2023 when it should have. This is at the lowest end of our published Guidance on Remedies and reflects the modest provision set out in Section F of the plan; Provide us with a written report of the changes it has made to staffing arrangements within the SEND Team. This should set out how the new arrangements will minimise the risk of recurrence in other cases.
The Council should provide us with evidence it has complied with the above actions.
Final decision
We uphold a complaint about a delay in issuing a child’s final Education Health and Care Plan and about poor communication with the child’s parents. The Plan was five months late which is fault. Communication was not in line with our expected standards. This is fault causing avoidable distress, uncertainty and delaying rights of appeal. The Council should apologise, make payments and take action set out in this statement to minimise recurrence.
I completed the investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman