Summary: The Council was at fault for delaying in completing a child’s Education, Health and Care plan, not putting in place adequate special educational provision and for failures in complaint handling. This caused injustice as if there had not been delays the child would have received the special educational provision they were entitled to receive much sooner. To remedy the injustice caused the Council agreed to apologise, make a payment for the loss of provision to the child and consider what changes it could make to its procedures around communication.

The complaint

1. Ms X complains the Council delayed in completing a re-assessment of her son’s Education, Health and Care plan.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. As part of this investigation I considered the information from Ms X and the Council. I telephoned Ms X to discuss the complaint. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council and considered comments received in response.
5. 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

Law and guidance

6. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
7. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
8. 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:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
9. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes advice from an Educational Psychologist. Those consulted have a maximum of six weeks to provide the advice. (The Code 9.47)
10. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

The Council’s complaints process

11. The Council operates a two stage complaints process. At each stage it has 20 working days to provide its response.

What happened

12. There has been extensive correspondence between Ms X, and the Council since November 2021. In this section of the statement I summarise key events but I do not refer to every single contact and communication.
13. Ms X’s son, Y, has special educational needs. Y attended School P and had an EHC plan in place. This included the following provision:
• A social communication language programme 2-3 times per week for 10 minutes a session.
• Daily small group opportunities to develop vocabulary and attention skills.
• Daily turn taking game with a keyworker and peers.
14. In November 2021, School P told the Council and Ms X it could not meet Y’s needs and that School P was not a suitable environment for Y. Following this Ms X said she spoke with the Council about it carrying out a full review of Y’s EHC plan with the input of an Educational Psychologist.
15. Ms X send emails chasing the Council up in January 2022 as she had not heard anything further about Y’s re-assessment. The Council said it held a meeting with School P in mid-January 2022 where School P shared its concerns about meeting Y’s needs.
16. As Ms X did not receive a response from the Council she made a formal complaint in late January 2022. Ms X told the Council she did not know what was happening with Y’s EHC plan and she has not received a response from the Council to her emails.
17. On 30 March 2022, the Council responded to Ms X’s complaint. The Council apologised for the time taken to respond to Ms X’s complaint. The Council said it had made a referral to its Educational Psychology team and acknowledged Ms X should not have experienced such a delays in having Y’s EHC plan amended.
18. On 31 March 2022, the Council met with School P and agreed to re-assess Y’s needs with the input of an Educational Psychologist.
19. The Council received the report from the Educational Psychologist on 26 May 2022 and after considering this agreed Y needed specialist resource provision.
20. On 9 June 2022, the Council sent Ms X a copy of a draft EHC plan for Y. Ms X responded shortly after receiving this and disagreed with some of the content in the draft EHC plan.
21. On 5 July 2022, Ms X made a new complaint to the Council about the time it had taken to amend and review Y’s EHC plan. Ms X said he still did not have a final EHC plan.
22. In August 2022, the Council started to consult with schools who could potentially offer Y a placement for the 2022-2023 school year. Over the course of August 2022 and September 2022 the Council consulted with seven schools.
23. The Council sent Ms X a further amended draft EHC plan in September 2022. Ms X again sent the Council her comments on the draft EHC plan.
24. On 17 November 2022, the Council responded to Ms X’s complaint. The Council apologised for the delay in providing the complaint response, for the level of communication she received from the Special Educational Needs Team and for the delay in finalising Y’s EHC plan. Ms X remained dissatisfied and asked the Council to consider her complaint at the next stage on 23 November 2022.
25. The Council provided its final response to Ms X’s complaint on 20 December 2022. The Council said:
• It recognised it had not properly communicated with Ms X. The Council explained it was making changes to how it communicated with customers in the future as its current system did not support the current volume of calls it receives.
• It produced the draft EHC plan for Y using the advice and reports it had received from the assessment process.
• It was still looking for a school placement for Y and would consider Ms X’s choice, however demand for places in specialist schools were high.
26. On 28 March 2023, the Council issued Y’s final EHCP. This named School Q. The Council had previously consulted School Q in September 2022, however it was unable to meet Y’s needs at this time as it did not have capacity for any more pupils who needed specialist resource provision. Y’s EHC plan contained the following provision:
• A social communication and interaction programme in a group of less than 7 children – weekly for 30 mins.
• A language based programme, for at 20 minutes at least three times per week, to increase vocabulary, verbal communication, listening and speaking skills.
• Daily structured sessions to support literacy and numeracy.
• Daily planned activities to promote turn taking within small groups.
• An assigned keyworker.
• Weekly sessions of at least 20 minutes to address social, emotional and mental health needs.
• Participation in a weekly group based programme that teaches resilience, understanding of emotions.
• Daily sensory programme of 10 minutes per day.
27. Y was due to start at School Q in April 2023, however Ms X said School Q refused to allow Y to start his placement. As a result, he stayed at School P.
28. In September 2023, Y started his placement at School Q.

Analysis

Delays in producing an EHC plan for Y

29. The Council was at fault for the time taken to issue Y with a new EHC plan. In November 2021, the Council was aware that School P could not meet Y’s needs. Following this, I cannot see what the Council did until March 2022 when it decided to re-assess Y’s needs. There are records of Ms X contacting the Council about the re-assessment in January 2022. As the Council was aware Y’s school could not meet his needs or provide the appropriate support, it should have at this stage either held an emergency review or taken steps to find Y a new placement. I cannot see what new information the Council was provided with which made it delay re-assessing Y’s needs from November 2021 until March 2022.
30. Once the Council started the reassessment of Y’s needs, it took a year to issue a final EHC plan. This was fault. Statutory guidance says the Council must issue the final EHC plan within 20 weeks of the assessment starting. Therefore Y should have received his final EHC plan by August 2022. On balance I am satisfied the Council should have started the assessment process in November 2021, when it became aware of the issues at School P. If the Council started the assessment process in November 2021, Y should have received a final EHC plan by April 2022.
31. From November 2021 until September 2023 Y attended School P, therefore he was getting some education. As School P was not able to meet his needs, I am satisfied on balance that he would not have received all of the Section F provision in his EHC plan. This was fault.
32. I cannot see what alternative arrangements the Council attempted to put in place to ensure Y was getting all of the provision in his EHC plan.
33. After Y was supposed to start School Q in April 2023, he did not receive the Section F provision listed in his new EHC plan (issued in March 2023) as he could not attend School Q as it disagreed with him being placed there. This was fault. The provision listed in Y’s new EHC plan was more detailed and extensive than in the previous EHC plan. Y did not start to receive this until September 2023 when he started his placement at School Q.
34. As I have found fault I need to consider what injustice this caused. Y attended a school placement which could not meet his needs from November 2021 until July 2023. I consider he has not received all of the provision in his EHC plan for this time period.
35. The difference in provision between Y’s old EHC plan and his latest EHC plan is significant. Therefore if the Council had not delayed in issuing the new EHC plan, Y should have started to receive the provision in his latest EHC plan much sooner. This is a significant injustice to Y.
36. Ms X has also suffered injustice as she has spent a considerable amount of time and effort in pursuing this with the Council. The Council has rightly acknowledged the delays in producing Y’s EHC plan and acknowledged the level of communication Ms X received throughout this process was not at the level it should be. However it has not offered Ms X a remedy for the distress, time and trouble she experienced.

Complaint handling

37. Ms X initially complained in January 2022 about the level of communication she had received from the Council. It took the Council 45 working days to provide her with a response to her complaint. This was fault.
38. Ms X raised a further complaint in July 2022. It took the Council 96 working days to respond to this complaint at stage one. This was also fault.
39. As a result, Ms X has had to wait an excessive timeframe to progress her complaint and ask the Ombudsman to investigate her concerns.

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Agreed action

40. Within one month of my final decision the Council agreed to carry out the following:
• Provide Ms X with a written apology for the faults identified.
• Pay Ms X, for the benefit of Y’s education, £4,500 for the lost special education provision Y experienced between November 2021 and July 2023. This amounts to roughly five terms. In coming to this figure I have considered the Ombudsman’s guidance on remedies and recommended £900 per term.
• Pay Ms X £400 for the distress, time and trouble she has suffered as a result of pursuing this matter with the Council and as a result of the Council’s delays in complaint handling.
• Consider what changes it can make to its communication process as outlined in its final complaint response and report back to the Ombudsman to what specific measures it will put in place.

I also considered making recommendations addressing the Council’s complaint handling and meeting statutory deadlines for EHC plans, however we have already made recommendations to the Council which address these points in other recent cases. It is therefore appropriate to allow the Council time to address these service improvements.

41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation and found the Council was at fault for delaying in completing an EHC plan, not putting in place adequate special educational provision and for failures in complaint handling. This caused injustice. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman