Summary: There was delay by the Council when issuing D’s final EHC Plan after the Tribunal issued its order in February 2023. This caused injustice because D waited longer to receive the specialist provision he was entitled to. Mrs Y also experienced some avoidable time and trouble.

The complaint

1. Mrs Y complains there was significant delay by the Council when issuing her son’s final EHC Plan, despite conceding the SEND Tribunal appeal in February 2023.
2. As a result, Mrs Y says her son missed provision he was entitled to. Mrs Y has also experienced financial loss and distress when pursuing the Council for the final plan.

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The Ombudsman’s role and powers

3. 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)
4. 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. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
6. 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)

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How I considered this complaint

7. During my investigation I discussed the complaint with Mrs Y by telephone and considered any information she provided.
8. I made enquiries of the Council and considered its response alongside the relevant law and guidance, which I have referred to in this statement.
9. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

What happened

11. D attended school until May 2022 when he was deregistered. Mrs Y says the school was not able to meet D’s needs because they did not understand the complexity of his health condition.
12. From May 2022 D received education at home. Mrs Y approached the Council for an EHC needs assessment. The Council assessed D but declined to issue a plan.
13. Mrs Y appealed the Council’s refusal to issue an EHC Plan for D. On 6 February 2023 SENDIST issued a consent order following the Council’s decision to concede the appeal and commission an EHC Plan.
14. It is the period after the order being issued which the LGSCO is investigating.
15. The consent order said, “the local authority shall issue an EHC Plan for [D] within five weeks of the date this consent order is approved by the Tribunal”.
16. In accordance with Regulation 44 of the Special Educational Needs and Disability Regulations (2014), the Council had a duty to issue the draft version of D’s EHC Plan within five weeks of the order, and the final plan within 11 weeks of the order.
17. The Council issued the first draft EHC Plan five weeks after the order on 13 March. Mrs Y responded the following day with comments. The Council responded on 27 March to acknowledge the comments and to confirm the officer will work through the response and share another draft.
18. Mrs Y had a virtual meeting with the Council on 21 April. After the meeting Mrs Y emailed the Council with her comments. She confirmed, “I have also included what we would like for the EOTAS [Education other than at School] provision for the next year”.
19. The Council issued the second draft EHC Plan on 1 June. Mrs Y responded with her amendments on 10 June. The Council considered the amendments and issued a third draft EHC Plan on 27 June 2023. Mrs Y responded with her amendments on 3 July.
20. Mrs Y called the Council for an update on 24 July, but D’s caseworker was on leave. Another officer told Mrs Y there was a scheduled meeting to discuss D’s plan and that someone would be in touch with an update after the meeting.
21. On 27 July the Council agreed to the EOTAS request in principle and said it would liaise with the Educational Psychology service to review the best way to meet D’s identified needs.
22. On 25 August the Council confirmed EOTAS had been agreed with a start date of 4 September.
23. The Council responded to Mrs Y’s request to include funding for snowboarding provision in D’s EOTAS package. The Council said there was no evidence to show snowboarding provision was needed to meet D’s special educational needs. The Council felt D’s EOTAS package was broad and balanced.
24. After further discussion, the Council agreed that funding allocated for D’s short breaks could be used by Mrs Y to fund an activity of D’s choice. The wording in D’s EHC Plan says:

“In line with [D’s] needs it would be appropriate for a personal budget to be provided using a prepayment card for [D] to be able to use flexibly. This would equate the full allocation of short breaks to be 3 hours per week, this would be a payment of £36.81 per week. This may be used for an activity which is felt appropriate by [D] and his parents”.

“Parents are keen to ensure [D] has opportunities in line with his hobbies and interests and therefore fund such activities via [D’s] DLA [Disability Living Allowance] monies”.

25. The Council issued the fourth draft EHC Plan on 13 September. Mrs Y responded the following day. On 15 September the Council emailed Mrs Y and confirmed, “We can await further information from professionals if you prefer, but I am aware from previous discussions that you would like the EHCP to be finalised as soon as possible”.
26. The Council issued the fifth draft EHC Plan on 21 September. However, the document did not contain the personal budget details, so the plan was re-issued on 2 October.
27. Mrs Y received the final version of D’s EHC Plan on 26 October. This was 37.5 weeks after the date of the consent order. The final plan said D’s family will receive a personal budget, to be paid by direct payments, to fund a bespoke package of EOTAS.
28. On 27 October Mrs Y contacted the Council regarding the payment arrangements for snowboarding. She explained the provider requests payment in full for the 13 week block of sessions. The direct payments for D’s package are paid in three stages so Mrs Y does not have access to the full amount to pay for the sessions in advance.
29. The Council responded to advise that Mrs Y needs to send her query to the short breaks team. There is no record of a response in the files reviewed as part of this investigation.

Was there fault by the Council causing injustice to Mrs Y and D?

30. The Council is at fault because it did not issue D’s final EHC Plan within 11 weeks of the Tribunal’s consent order. The Council issued its plan 37.5 weeks after the order which amounts to 26.5 weeks of delay. The delay is equivalent to approximately 70% of a school term.
31. In mitigation the Council explained that Mrs Y provided extensive comments in response to each draft. It is understandable that the Council wanted to carefully review those to ensure D’s plan was an accurate reflection of his assessed needs and outcomes.
32. The Council also explained that D was electively home educated and so he continued to receive provision during the period of delay. Furthermore, the Council points to an email sent by Mrs Y which it says indicated that she wanted D’s provision to begin from September 2023, and not sooner.
33. I have referred to the Special Educational Needs and Disability Regulations (2014) which list the times when the Council may not comply with the statutory timescales. These are:
• exceptional personal circumstances which affect the child or their parent, or the young person during that period of time;
• the child or their parent is absent from the area of the authority for a continuous period of 2 weeks or more during that period of time;
• the authority has requested advice from the head teacher or principal of a school or post-16 institution during a period beginning one week before any date on which that school or institution was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens.
34. The reasons put forward by the Council do not fall within any of the exemptions listed above. It is therefore my view that the delay is fault which caused injustice to D. This is because D’s EOTAS provision would have been in place 26.5 weeks earlier had the Council complied with the 11-week timescale. Furthermore, Mrs Y experienced avoidable time, trouble and distress.
35. I have not seen any evidence to support the Council’s assertion that Mrs Y wanted EOTAS from September only. This is contrary to the many emails Mrs Y sent throughout 2023 chasing up provision for D.
36. When considering a remedy, I am mindful that D received some provision at home during the period of delay. I have not investigated whether the home education was elective or not, because this pre-dates the matters being considered in this investigation. However, in any event, we can say that D’s specialist provision should have been delivered much sooner than it was.
37. Mrs Y also complained about financial loss arising from the snowboarding sessions which she has funded for the whole year. In response to my draft decision, Mrs Y confirmed she is now up to date with the necessary payments for D’s provision. Therefore, I have not considered this point further.

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Agreed action

38. Within four weeks of my final decision, the Council has agreed to:
• Pay £1,500 for D’s educational benefit. This is a symbolic payment in recognition of the EOTAS funding he missed (70% of a school term) during the period of delay. When deciding on this amount, we considered D’s special educational needs, and that the delay occurred in the year before the transition to secondary education. This is in line with our approach as outlined in the LGSCO’s Guidance on Remedies.
• Pay £350 to Mrs Y for the distress, time and trouble she experienced as a direct result of the delay in finalising D’s EHC Plan.
39. The Council will provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions listed above will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman