Summary: The Council was at fault because it delayed producing an education, health and care plan for a child with special educational needs. It was also at fault because of delays in its correspondence with the complainant. It had already offered a financial remedy for the injustice this fault caused, but has agreed to increase its offer upon our recommendation.

The complaint

1. I will refer to the complainant as Mr C. Mr C’s complaint concerns his son, to whom I will refer as D.
2. Mr C complains there was a significant delay in the Council producing an education, health and care (EHC) plan for D.

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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. 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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How I considered this complaint

5. I reviewed D’s EHC plan, and a selection of Mr C’s correspondence with the Council.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. The following is intended to provide only a brief overview of the key events relevant to this complaint. It will not include every detail of what happened.
8. D has been diagnosed with autism. He currently attends a nursery and is due to start primary school in September 2023.
9. On 26 October 2021, the Council received a request for D to undergo an EHC needs assessment. It agreed to this request and then, following the assessment, agreed to issue an EHC plan for D.
10. In July 2022, the Council issued a draft EHC plan for D. Mr C contacted the Council to express disagreement with the content of the plan, and the Council said he could make representations, which it would consider before finalising the plan. However, the Council then issued the final plan in August, before Mr C’s deadline for making comments had passed.
11. After Mr C complained about this, the Council again invited him to submit his comments. Mr C did so, and the Council issued another draft EHC plan in September, but Mr C was still unhappy with it. The Council then considered Mr C’s comments again, redrafted the plan further and finalised it on 28 October.
12. The Council issued a formal complaint response to Mr C on the same day. It said it upheld Mr C’s complaint that there had been a long delay in producing and finalising D’s EHC plan. It explained this was because of a significant increase in the number of EHC plans the Council was managing and the consequent pressure on its services.
13. The Council said it had issued the final EHC plan before the deadline for Mr C’s comments because of an administrative error. It had considered Mr C’s comments and made some amendments in September, and had then arranged to meet Mr C in October to discuss his ongoing concerns. The Council explained it was obliged to consider parental comments about EHC plans, but was not required to agree to their requested changes.
14. The Council also accepted there had been delays in officers responding to contact from Mr C. It apologised again for this and explained it had been recruiting additional staff.
15. In a second response on 29 November, the Council accepted it should have informed Mr C the EHC plan would be delayed and apologised for this. It explained again what it was doing to relieve the pressure on its resources. The Council also apologised it had not arranged a meeting for Mr C with a manager before issuing the original EHC plan, as he had requested.
16. The Council issued its final response to Mr C’s complaint on 3 February 2023. It reiterated its apology for officers’ delays in responding to his correspondence, for the delay in producing the EHC plan, and for its error in publishing the final plan in August before Mr C had had a chance to comment. However, it explained again the Council was not obliged to accept the amendments he had requested.
17. The Council offered Mr C £250 to reflect the time and trouble its faults had caused him. It then referred Mr C to the Ombudsman if he wished to pursue his complaint further, which he did on 10 February.

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Legislative background

18. 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.
19. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ 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.

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Analysis

20. The SEN Code of Practice says the entire process of producing an EHC plan – from the date a council receives a request for an assessment, to the issue of a finalised copy of the plan – should take a maximum of 20 weeks.
21. The Council received the request to assess D on 26 October 2021. By my calculation, this means the Council should have issued his final EHC plan by 15 March 2022; but D’s plan was not properly finalised until 28 October, a further 32 weeks, and over a year since the request for assessment.
22. I do not overlook the fact the Council originally issued a final plan for D in August, and so arguably the time period should be measured only to this date. However, the Council only did this in error and it quickly withdrew the plan, pending further comments from Mr C.
23. By either measure though, the Council missed the deadline to finalise D’s EHC plan by a significant margin. This is fault.
24. I acknowledge the Council does not dispute this. It has explained the difficulty it has found itself in with an increase in the number of assessment requests, and in the number of plans officers need to manage. It says it has been recruiting additional staff, but this process has also proved difficult.
25. Such problems are unfortunately not uncommon, and we are mindful of the impact they can have on councils’ abilities to meet their statutory duties. The fact remains, however, that delays can have serious consequences for children and young people with special educational needs. For example, a child who needs an EHC plan, but does not yet have one, may not receive the critical support they need to fully access their education.
26. In D’s case, he is not yet of school age and has therefore not started his proper education. I do note he attends nursery, and I understand the intent is that nursery staff implement his EHC plan; but I am also conscious that attendance at nursery is not compulsory, and does not form part of the formal education system. Therefore, while I accept the delay in producing his EHC plan will have had some impact on D, in terms of the support he receives at nursery, I consider this is less significant than it might have been had he already been attending school.
27. The Council has offered a remedy of £250 here. It says this is to address the time and trouble Mr C has been to as a result of the fault in this case.
28. I am a little unclear what the Council means by this. The main fault here is that D was without his EHC plan for approximately seven months longer than he should have been. The injustice arising from this fault is not one of time and trouble, therefore, but of the support D missed during that time, and the impact this has had on him.
29. The Council has also accepted Mr C found it difficult to contact the Council at times, and experienced delays in getting a response to his correspondence. This might be reasonably be termed ‘time and trouble’, therefore, but if so, this implies the Council’s suggested remedy is not intended to address the impact on D of the missed support.
30. Either way, I am not persuaded £250 is adequate to address these injustices.
31. I have considered the Ombudsman’s published Guidance on Remedies. This says, where a child or young person has missed education due to council fault, we will generally recommend a remedy of between £200 and £600 per month, depending on the circumstances. The intent is for this money to be put towards the child or young person’s education, in whatever way they or their parents think most appropriate.
32. However, this tariff is generally intended for children who are of school age, but who are receiving either partial education, or none at all. As I have said, I do not consider the impact of missed support at nursery to carry the same significance as missed formal education.
33. I therefore consider a more appropriate remedy here would be £50 per month, for each month of delay in finalising D’s EHC plan. At approximately seven months, this means a total of £350.
34. The Council should pay this money to Mr C, and it will be for him to decide how best to use it for D’s educational benefit.
35. In addition to this, I consider the Council should offer an additional remedy of £150 to Mr C, to reflect his frustration at the problems he had contacting the Council.
36. In conversation with me, Mr C commented that the officer who was responsible for the delay in the EHC plan has not been identified by the Council. However, our investigations are into the Council as a whole, and we do not seek to identify or blame individual officers when we make findings of fault. In any case, the evidence suggests the root cause of the problem is understaffing in the Council’s SEN department, rather than poor performance by a specific officer.

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Agreed action

37. Within one month of the date of my final decision, the Council has agreed to:

• offer to pay Mr C £350 to reflect the impact of the support D missed while waiting for his delayed EHC plan; and
• offer to pay Mr C a further £150 to reflect the frustration he suffered because of problems contacting the Council.

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

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Final decision

39. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman