Summary: Ms X complains about the Council’s delay in the EHCP process, resulting in missed SEN provision for her son and distress. The Ombudsman finds the Council at fault and recommends it pays £6375 for missed SALT provision; pays £1000 in recognition of other missed provision; pays £300 for distress and uncertainty and takes action to prevent recurrence.

The complaint

1. Ms X complains the Council delayed producing a final Education, Health and Care Plan (“EHCP”) for her son, Y. She says he missed out on Special Educational Need (“SEN”) provision and they have suffered distress.

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What I have investigated

2. I have investigated the complaint above. At the end of this decision I have explained why I have not investigated Ms X’s further complaint.

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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 an injustice, 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 can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))

6. 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.
7. If we are satisfied with a council’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

8. I spoke to Ms X and I reviewed documents provided by Ms X and the Council. I gave Ms X and the Council the chance to comment on a draft of this decision and I considered the comments provided.

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What I found

EHCP process

9. Once a parent asks the council for an EHCP assessment the council has six weeks to say whether it will carry out an assessment.
10. If the council decides to assess the child it will gather information and then decide if the child needs an EHCP.
11. If the council decides the child needs an EHCP it must send a draft to the child’s parent and give them at least 15 days to comment and express a preference for a school.
12. If a child’s parent asks for a particular school the council must name the school in the EHCP unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources
13. When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
14. Where the council does not agree the suggested changes it may still issue the final EHCP.
15. In any event the Council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the draft plan. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
16. The whole process should not take longer than 20 weeks.
17. The council must also tell the parent of their right to appeal to the SEND Tribunal and the time limit for doing so.

Jurisdiction

18. The Ombudsman has no jurisdiction where a parent has appealed to the SEN Tribunal from the date the SEN appeal right arises until the appeal is completed. Any loss of education or fault during this period which is a consequence of the decision being appealed (e.g. choice of placement) is out of jurisdiction, even if this means the injustice will not be remedied.
19. Sometimes where a parent approaches the Ombudsman after a successful appeal we are able to say that, but for fault, the appeal would have happened earlier and remedy injustice for the earlier delay. We cannot remedy delay during the SEND process.

What happened

20. Ms X’s son, Y, attended a mainstream primary school, School A.
21. In October 2017 Ms X asked the Council to assess Y for an EHCP.
22. The Council agreed to do so, within the six week timescale. The 20 week deadline for the Council to issue a final EHCP was 28 February 2018.
23. The Council issued a draft EHCP in June 2018.
24. Ms X wanted Y to attend a special school. The Council consulted with a mainstream school, School A, that felt Y needed a specialist setting to meet his speech and language needs. The Council also consulted with a specialist setting, School B, that felt Y did not need the intensive speech and language therapy it provided.
25. The Council issued a final EHCP on 9 January 2019 naming School A. I note this was based upon reports and evidence dating from November 2017 to March 2018.
26. This EHCP says Y has delayed speech and language which is affecting his communication. He finds social interaction difficult to establish and maintain. And he has specific difficulties developing his literacy skills, especially his spelling and his ability to structure and punctuate his writing.
27. The EHCP outlines general resources and strategies to meet Y’s needs and sets out specific provision:
• A social skills group 30 minutes weekly
• Precision teaching 15 minutes daily to target specific phonic skills or spelling
• Small group learning about emotions 30 minutes weekly
28. I note there is no specialist provision for Y’s speech and language needs.
29. Ms X appealed to the SEN Tribunal about the content of the Plan and the named school.
30. Following the appeal, the Council issued another final EHCP on 5 June 2019, naming School B. I note this takes account of the same reports and evidence dating from November 2017 to March 2018, with the addition of a speech and language update issued in February 2019. I note the detail within the EHCP relies on information from the earlier reports and assessments in explaining Y’s needs, rather than the update.
31. The EHCP says Y has Developmental Speech Disorder which is affecting his communication. He finds social interaction difficult to establish and maintain. And he has specific difficulties developing his literacy skills, especially his spelling and his ability to structure and punctuate his writing.
32. I note the EHCP details additional resources and strategies to support Y. It also sets out specific provision:
• Direct work to improve expressive language skills 30 minutes twice weekly with a Speech and Language Therapist (“SALT”) then a suitably trained Teaching Assistant (“TA”)
• Direct language therapy 30 minutes three times per week with a SALT then a suitably trained TA
• SALT assessment every other term
• Pre- and post- teaching of vocabulary 30 minutes twice weekly
• Precision teaching 15 minutes daily to target specific phonic skills or spelling
• Small group learning about emotions 30 minutes weekly
33. Ms X first complained to the Council in May 2019 though the Council says it did not receive this.
34. Ms X contacted the Ombudsman and then complained to the Council again in November 2019.
35. In response the Council outlined what had happened and accepted there was significant delay in the EHCP process.
36. Ms X complained again as she felt the Council had not properly addressed her complaint or provided a suitable remedy. She was unhappy about the delay in issuing a final EHCP and the inaccuracies in the first draft EHCP. This included a failure to mention Y’s developmental language disorder despite reports referring to this. She said Y had suffered academically due to remaining at School A, which could not meet his needs. His wellbeing had also suffered and he had been bullied at School A. She had also found School A had asked the Council for a ways forward meeting in November 2018 and received no response.
37. The Council provided a more detailed response recognising the inaccuracies in the draft EHCP. This included the missed diagnosis, another child’s name in the plan and the use of an outdated Speech and Language report. It apologised for the poor quality of the Plan. It explained recent reports referred to Y’s diagnosis of developmental speech disorder and without this information in the EHCP Y was left without a suitable placement. It recognised it did not address a request for a ways forward meeting. It explained its delay in issuing a final EHCP was due to casework drift and a failure to chase up professional reports. The Council apologised and offered £1000 for delay, inaccuracies in the EHCP and lack of communication with Ms X.
38. Ms X contacted the Ombudsman as she was unhappy with the remedy offered by the Council and felt it should take action to prevent recurrence.
39. In response to my enquiries the Council reiterated it had accepted fault and unreservedly apologised. It explained it had difficulty identifying a placement for Y in line with parental preference due to conflicting information about his speech and language needs. It noted a 2016 report had referred to Y’s language disorder whereas a 2018 report referred to delayed language development. However, it also recognised that while the search for an appropriate placement was carried out, it could have issued a final EHCP naming a type of placement, giving Ms X her right of appeal at an earlier stage. It insists it worked with Ms X throughout and kept her updated. It also strongly refutes the delay resulted in Y being denied appropriate provision and insists that it took a Tribunal agreement to finalise the suitable placement.
40. In comments on my draft decision Ms X said the extra sessions of SALT seemed too late. She emphasised the emotional distress her son had suffered due to the lack of SEN support and bullying at School A. Ms X added that there had been further delay in provision after the Tribunal outcome of June 2019.
41. In its comments on my draft decision the Council explained the difficulty in arranging catch up SALT provision during the current pandemic but detailed the cost of such provision. It also detailed the actions already taken to prevent delays in the EHCP process future. This included:
• Instructing officers to ensure that if a placement is difficult to find to avoid delay it must issue an EHCP naming the type of institution.
• Delivering training to EHC Plan writers and professionals who contribute reports for the needs assessments.
• Training sessions have been delivered weekly to the whole SEND Assessment and Placement staff service and training has been given to Health professionals. It will also deliver training in the near future to Social Care Staff in relation to the quality and timeliness of the advice and information they supply for the Statutory Needs Assessment.
• Increasing the capacity within its Educational Psychology (“EP”) service to provide advice and information. Appointing additional staff and recruiting some locum staff to assist with the writing of reports for Statutory Needs assessments. And training EP service staff on the requirements they need to supply in their advice and Information.
• Increasing capacity within the SEND service by recruiting additional posts to be available where most needed throughout the County.
• Increasing school/setting places by Commissioning additional places where needed.

Findings

42. The Council accepts it delayed during the EHCP process. The Council should have issued a final EHCP by 28 February 2018 however it did not issue this until 9 January 2019. This is significant fault. As the Council recognises, even if there was an unavoidable delay in identifying a suitable setting for Y, it could have issued a final EHCP naming a type of setting to allow Ms X her right to appeal.
43. The Council also accepts there were inaccuracies in the draft EHCP issued in June 2018. This amounts to fault.
44. If the Council had issued its final EHCP on 28 February 2018, Y would have remained in School A and received the SEN provision set out in the Council’s EHCP until Ms X appealed and achieved the Tribunal outcome. On balance I consider Ms X would have achieved the same Tribunal outcome at an earlier date, but for the Council’s delay.
45. Calculating a remedy for missed provision is not an exact science, but I consider Y would have received 17 weeks’ term time provision under the Council’s EHCP from 28 February 2018 until the end of summer term 2018, but for the Council’s fault. And Ms X would have appealed earlier and achieved the same Tribunal outcome by September 2018, but for the Council’s fault. Therefore, Y also missed out on 30 weeks’ term time provision as detailed in the EHCP issued following the Tribunal, from September 2018 to June 2019. I note this later EHCP included 2.5 hours per week SALT provision.
46. I will recommend the Council make a payment to remedy the loss of 11 months’ (term time) SEN provision, excluding SALT. The amount will reflect that Y remained in full time education and missed 2-2.5 hours SEN provision per week. I will also recommend the Council make a payment to allow Ms X to arrange catch up SALT provision or other support as she sees fit, to remedy the loss of 2.5 hours per week x 30 weeks missed SALT provision.
47. Ms X spent considerably longer than necessary liaising with the Council during the prolonged EHCP process. She has suffered distress and uncertainty due to the Council’s delays, inaccuracies in the draft EHCP and the impact on Y. I also consider Y will have suffered some distress while remaining in School A and not receiving all the support he needed. In response to Ms X’s comments I note we do not award compensation in the same way the courts might. Rather, we try to return a complainant to the position they would have been in, but for the Council’s fault. We cannot undo any distress suffered and I cannot say the Council is responsible for Y being bullied. I can recommend a relatively small payment in recognition of the distress suffered.
48. I note the Council has already apologised to Ms X and offered £1000 by way of a remedy. However, I consider the sum offered does not adequately reflect the full injustice suffered for the reasons above.

Agreed action

49. To remedy the injustice set out above I recommend the Council carry out the following actions within one month of the date of my decision:
• Pay Ms X an amount equal to the cost of missed SALT provision of 2.5 hours per week over 30 weeks, for Ms X to use as she sees fit for the benefit of Y’s education;
• Pay Ms X £1000 in recognition of Y’s missed SEN provision, (excluding SALT);
• Pay Ms X £300 for the distress and uncertainty caused to her and Y;
• Take action to prevent such delays in the EHCP process in future and inform the Ombudsman of the actions taken.
50. The Council has accepted my recommendations. It confirms the cost of arranging SALT provision based on the average hourly rate of approved suppliers would have been £6375.

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Final decision

51. I find the Council at fault for delay in the EHCP process resulting in missed provision. The Council has accepted my recommendations and I have completed my investigation.

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Parts of the complaint I did not investigate

52. I have not investigated Ms X’s complaint about lack of provision from June 2019 as this did not form part of my original investigation and was not addressed during the complaints process. I therefore consider the Council has not yet had a reasonable opportunity to investigate and respond to this complaint.

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Investigator's decision on behalf of the Ombudsman