Summary: Ms X complained the Council delayed issuing her child’s Education, Health and Care Plan. The Council was at fault for a two month delay in issuing the plan. It has also failed to provide the provision set out in the plan so Ms X’s child has missed out on provision. It has agreed to apologise to Ms X and make a payment in recognition of the injustice caused.

The complaint

1. Ms X complains the Council has delayed issuing her child, Y’s, Education, Health and Care (EHC) Plan and has failed to put in place the education and specialist provisions named in the plan. As a result, he has missed out on receiving appropriate specialist provision. It has also failed to keep Ms X updated about progress during the EHC process which has caused her frustration and time and trouble.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended).
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. 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)
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 the final decision with Ofsted.

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How I considered this complaint

7. I have considered the information provided by Ms X and have discussed the complaint with her on the telephone.
8. I have considered the Council’s response to my enquiries and the relevant law and guidance.
9. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching the final decision.

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What I found

10. 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 SEND tribunal can do this.
11. The EHC Plan sections include:
• Section B: The child or young person’s 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 school. 
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
13. 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.
14. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
15. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

What happened

16. On 5 July 2022 Ms X contacted the Council to request an EHC assessment for her child Y who would reach compulsory school age in the summer term of 2023. Y has a diagnosis of autism spectrum disorder. Ms X and Y had moved from another council’s area where Y attended a specialist nursery. Y started to attend a pre-school setting for mornings only. On 10 August the Council agreed to carry out an EHC assessment. Y was due to start a mainstream primary school in September 2022 however Ms X agreed to defer the placement while Y was assessed. Ms X later declined the placement as unsuitable.
17. In late September 2022 Ms X contacted the Council to complain about the delay in completing the EHC assessment. The Council responded in mid-October and apologised for the delay which it said was due to a delay in receiving the Educational Psychologist’s assessment of Y and this was due to there being a high number of staff vacancies. The Council received the Educational Psychologist’s report on 15 November 2022.
18. Ms X continued to raise concerns as Y should have started Reception from September 2022. The 20 week deadline for the EHC plan process had been exceeded and she had yet to receive the draft plan.
19. In early November Ms X’s case worker advised her they were leaving the service.
20. On 23 November the Council’s Education Governance Board agreed to issue a plan for Y. Ms X chased the Council for an update as she had not heard the outcome of the Board meeting. The Council responded to Ms X at the second stage of its complaints process. It explained a new case officer had been asked to contact her directly with a timescale for the plan. It apologised for the delays.
21. On 9 December 2022 the Council issued Ms X with a draft EHC Plan for Y. Ms X provided her comments and specialist school preference. Ms X also requested a personal budget and for the Council to provide suitable alternative full-time education until a school place could be found. Ms X’s newly allocated case worker contacted four schools including Ms X’s preference to establish if they were able to offer Y a place. Later in December the case worker went on sick leave.
22. A senior case officer followed up the referrals later in January 2023. Two schools were unable to offer a place, one did not respond and the fourth had yet to reach a view.
23. Ms X contacted the Council twice requesting an update on finding a school place. The Council said it shared Ms X’s concerns about finding a school place and would look to finalise the plan so that it could then consider a short-term budget until a place was found.
24. The Council was unable to find a specialist school placement for Y and issued the final plan on 23 January 2023. At section I the plan stated: local authority maintained specialist school. In an email to Ms X the Council advised it would look to set up a personal budget while it identified a school place. A senior case officer consulted another school for a place in year one, starting September 2023.
25. Section F set out the support required to meet Y’s needs. In addition to the support to be provided by teaching staff, provision included:
• Speech and language therapy (SLT) provision of at least two sessions per term to support Y and the teaching team.
• SLT review of progress, targets and provision arrangements six times across the year
• Occupational Therapy (OT) to provide strategies and advice to support Y and the adults working with him. Six school based contacts per year with each visit no less than 60 minutes with additional time for report writing and relevant administration (nine school based contacts if Y attends a mainstream school). The number of visits would be delivered within a 12-month period, the start date defined by the date of the issue of the EHCP until the next annual review in 2023 when provision will have been fulfilled.
26. Ms X contacted the Council as she said comments she had made were not incorporated in the final plan. Ms X attended mediation and the Council agreed to make some amendments to the plan. It also agreed to feedback on progress with getting OT support and Ms X’s request for a personal budget.
27. The Council says SLT provision has begun. It is continuing to look for a placement for Y and has agreed the details of a personal budget with Ms X. At its next meeting with health representatives it says it will discuss when OT provision will commence.

Findings

Delay in issuing EHC Plan

28. The Council reached its decision to carry out an EHC assessment within six weeks of Ms X’s request, which was within the statutory timescales and was not fault. However, the final EHC Plan was not sent to Ms X until 23 January 2023, two months later than it should have been. This delay was fault and caused Ms X frustration. It also delayed her opportunity to appeal to Tribunal.
29. The Council has said delay issuing the plan was due to delay in receiving an educational psychology report, but it is the Council’s duty to ensure it has sufficient resources in place to meet the statutory timescales. When it became clear the Council would not receive the psychology report within the 20-week timescale for completing the EHC plan, the Council should have considered whether to commission a private assessment or seek external advice.
30. Y’s EHC Plan states they should attend a special school. The Council consulted four special schools. Due to the absence of the case worker these consultations were not followed up until mid-January 2023. This delay was fault and added to the delay in issuing a final plan.
31. The Council has yet to identify a school that can meet Y’s needs. Ms X attended mediation to try and identify suitable provision for Y. She also requested some changes to the plan’s contents. If Ms X remains dissatisfied with the plan’s contents it is open to her to use her appeal right to the SEND Tribunal.
32. Y has received some morning nursery provision, but this is not suitable provision as it is not what is named in section I of the plan. Y should have been able to access a specialist school and receive the provision as set out in the EHC Plan from the date the final plan was issued. The Council has yet to agree alternative education provision for Y whilst a special school place is found. This delay securing Y a placement in a specialist school is fault and means Y is missing out on education provision they are entitled to and has caused Ms X distress and frustration.
33. Although Y is receiving some SLT provision the Council has not as yet secured OT provision for Y. The EHC Plan sets out the OT provision Y should receive from the date of the final EHC Plan. The failure to provide the support set out in the plan is fault and means Y has missed out on provision they should be receiving.
34. There were several changes of Ms X’s case worker due to staffing issues. I cannot say the Council is fault for staff changes it has no control over. Ms X says she constantly had to chase the Council for updates. The records show the Council did not always respond to Ms X’s communication immediately but did, in general, respond to Ms X’s communication without significant delay.

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Agreed action

35. Within one month of the final decision the Council has agreed to:
• Apologise to Ms X and pay her £200 to acknowledge the frustration caused by the Council’s faults.
• Pay Ms X £600 to acknowledge the loss of provision caused by the delay in issuing Y’s EHC Plan between November and January 2023.
• Pay Ms X £300 a month from the date of the final plan until the Council arranges a special school place or suitable alternative provision, to be used for Y’s educational benefit.
36. Within 3 months of the final decision the Council has agreed to:
• provide evidence of the actions it is taking to increase educational psychology capacity and reduce waiting times; and
• provide evidence of the actions it is taking to increase capacity for specialist school places.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation. There is evidence of fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman