Summary: Mr X complains about delay and failure to deliver provision outlined in Y’s EHCP. We have concluded our investigation having made a finding of fault. There was delay in finalising Y’s EHCP, and the Council failed to provide Y with a laptop that could be used outside of the educational setting. We acknowledge that whilst 1:1 support and co-ordination of the educational package have not been delivered as per the terms of the order, Y has not been caused a significant injustice as this provision has been delivered through Provider A. The Council has accepted our recommendations.

The complaint

1. Mr X complains the Council failed to update his daughter Y’s EHCP within statutory timescales. Mr X also complains the Council has failed to ensure provision outlined in Y’s EHCP has been delivered. Mr X would like the Council to ensure the provision is put in place, to apologise, provide a remedy to acknowledge the lost provision to Y, and a remedy to acknowledge the impact on the family.

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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. 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.
4. 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

5. I liaised with Mr X and considered the information he provided. As part of my investigation, I also made enquiries to the Council and considered the information it provided in response. Mr X and the Council were offered an opportunity to comment on my draft decision and I considered all comments submitted before making a final decision.

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What I found

Relevant guidance and legislation

Education, Health and Care Plans

6. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
7. Councils are 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.

Appeal rights

8. 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.

What happened

9. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.
10. Mr X’s child, Y, has special educational needs and has an EHC Plan.
11. An appeal was heard on 19 January 2023 and a final order issued by the Tribunal on 13 February 2023. The date of the order was 20 March 2023.
12. The Council submitted the amended EHCP to its legal team on 17 March 2023. The Council says the document was not picked up until 20 March 2023, and so it wrote to Mr X to inform him of this delay.
13. The finalised EHCP was issued on 23 March 2023, however comments from Mr X pertaining to discrepancies in the document resulted in a further finalised EHCP being issued on 30 March 2023.
14. Amongst other provision in Y’s EHCP, notably stipulated within the plan, is that:
• ‘Y should have 1:1 teaching assistant support for 24 hours a week while in her educational setting.’
• ‘The LA will provide Y with a laptop.’
• ‘An education programme and therapy to be co-ordinated by an educational professional from within the LA or an externally commissioned person with experience of drawing up and overseeing programmes for young people with ASD.’
15. Toward the end of April 2023, Mr X complained to the Council about delay in finalising Y’s EHCP, and for provision detailed above that had not been delivered.
16. Toward the end of May 2023, the Council sent Mr X its complaint response. The Council upheld the complaint, acknowledging delay in finalising Y’s EHCP and for provision that had not been delivered. The Council said
• It acknowledged there was a delay of 3 days in finalising Y’s EHCP, and a further 7 days in providing a rectified document following discrepancies identified.
• Provider A were seeking to employ a teaching assistant to support Y on a 1:1 basis and in the interim it had agreed to fund this via an agency worker whilst a staff member is recruited longer term.
• Provider A had agreed to provide a laptop for Y whilst the Council procures permanent equipment for Y.
• A representative from its SEND Service was to be allocated to oversee delivery of the plan.
17. Unhappy with the Council’s response, toward the end of May 2023, Mr X escalated his complaint to Stage 2 of the Council’s complaint process. Mr X said:
• He acknowledged that funding was in place but that recruitment for the role longer term had not yet been successful.
• The laptop provided to Y was only for use within the provision and did not allow for Y to utilise the equipment outside of school.
• The Council had still yet to allocate a staff member to oversee delivery of the plan.
18. In August 2023, the Council sent Mr X its Stage 2 Complaint response, it said:
• It acknowledged that funding had been confirmed for 1:1 support for Y, but that it had not yet been able to recruit a personal assistant for Y prior to the end of the academic year. The Council said that 1:1 support had been provided to Y during the interim period through a teaching assistant.
• It had now procured a laptop for Y to use at home.
• The Council were still in the process of recruiting someone responsible for programme co-ordination.
19. The Council apologised to Mr X and offered a remedy payment of £500 as a symbolic payment for delays in securing provision, and to remedy the impact on Y and the wider family.

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Analysis

20. Mr X complains the Council failed to update his daughter Y’s EHCP within statutory timescales and that the Council has failed to ensure provision outlined in Y’s EHCP has been delivered. Therefore, my analysis will consider each of these points in turn, to determine whether the Council acted with fault, and what injustice, if any, this caused to Y and/or, Mr X.

Failure to issue Y’s EHCP within statutory timescales

21. The Council was required to provide an amended final EHCP as per the Tribunal order by 20 March 2024. The finalised EHCP was issued on 23 March 2023, and the further finalised EHCP issued on 30 March 2023. This is fault by the Council.
22. The Council has acknowledged delay in issuing the final EHCP. The Council said that discrepancies identified by its legal team contributed to delay, as it required additional time to seek clarity from the Tribunal service. In addition to this, the Council says that staff leave, and staff turnover contributed to the document being issued late, but that it apologised and made Mr X aware of the delay. Further, the Council also says that further discrepancies not previously identified resulted in a further finalised EHCP being issued 7 days later.
23. Whilst I acknowledge fault by the Council, I do not consider that this delay in itself has caused Y a significant injustice. Y remained in attendance at Provider A with an access to education, and I consider the apology to Mr X to be sufficient.

Failure to provide provision – 1:1 support

24. Y’s EHCP states she should have 1:1 teaching assistant support for 24 hours a week while in her educational setting. Y has not received 1:1 support from a teaching assistant. This is fault by the Council.
25. The Council has acknowledged delay in arranging this provision. The Council says there was a delay in securing support due to recruitment issues. The Council says Provider A are seeking to report a permanent teaching assistant to support Y on a 1:1 basis and that it has agreed to fund a teaching assistant via an agency in the interim.
26. Whilst I acknowledge fault by the Council, I do not consider this has caused Y a significant injustice. Having reviewed correspondence and comments provided by Mr X and the Council, I understand that Y has received 1:1 support, which has been provided by Provider A in the interim whilst a permanent arrangement is secured.

Failure to provide provision – laptop

27. Y’s EHCP states the Council will provide Y with a laptop. The Council did not provide Y with a laptop until August 2023. This is fault by the Council.
28. The Council has acknowledged delay in arranging this provision. The Council says two failed deliveries contributed to delay, and in the interim, Y had access to a laptop from Provider A.
29. The Council says that Y has not incurred an injustice, as she had access to a laptop in the interim, but I do not agree. Whilst Y had access to a laptop from Provider A, this was only within the setting, and so a failure to provide a laptop prevented use outside of the setting to pursue Y’s subjects of interest. This is the injustice to Y.

Failure to provide provision – co-ordinating the plan

30. Y’s EHCP states an education programme and therapy to be co-ordinated by an educational professional from within the LA or an externally commissioned person with experience of drawing up and overseeing programmes for young people with ASD. The Council did not ensure an education programme and therapy was co-ordinated by an educational professional. This is fault by the Council.
31. The Council says that it liaised internally within its SEND service to identify an individual to oversee delivery of the package, but it was not able to allocate a staff member. The Council says it is to recruit a staff member to lead on such cases, including that of Y’s.
32. Whilst I acknowledge fault by the Council, I do not consider this has caused Y a significant injustice. Oversight of the educational package has been managed by Provider A in the interim, and the Council confirms that Y’s needs are being met, and that provision has otherwise been delivered.

Remedy awarded by the Council

33. Following Mr X’s complaint to the Council, it apologised to Mr X and offered a remedy payment of £500 as a symbolic payment for delays in securing provision, and to remedy the impact on Y and the wider family. The Council says it considered our published Guidance on Remedies when arriving at a remedy payment to Mr X and Y. It is not clear exactly how the Council has calculated the remedy payment of £500.
34. Our published Guidance on Remedies says ‘where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.
35. As described above, whilst I acknowledge fault in all instances complained about, I do not consider Y has been caused a significant injustice with regards to 1:1 support and co-ordination of the package. This is because Y has received 1:1 support from Provider A, and Provider A has also co-ordinated delivery of the package in the interim.
36. However, I did consider that there is unremedied injustice caused to Y with regards to the delivery of the laptop. I note that Y had use of the laptop within the setting but was not able to access the device outside of school to pursue subjects of interest. I consider the duration of this injustice to cover the summer term from April to July 2023. As per above, and considering the conditions described in paragraph 34, I have arrived at an amount of £600.

I also acknowledge an injustice to Mr X, by where delay described in this complaint, and failure to secure provision has caused Mr X and his family distress through uncertainty and frustration. As per our published guidance on remedies, where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500. I consider an amount of £200 to be a sufficient remedy.

Service improvement implemented by the Council

37. I raised enquiries with the Council with regard to service improvement it had implemented in light of Mr X’s complaint. The Council said it had reiterated the expectation that officers provide its legal service with the amended EHCP within one week of the due date wherever possible.
38. The Council also said it had recruited new Annual Review Caseworkers to ensure that statutory timeframes for issuing decisions, drafting and finalising amended EHCP’s are adhered to.
39. The Council also said its SEND Service is to recruit into a post in early 2024 to oversee educational provision for young people with EOTAS packages.

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Agreed action

40. To remedy injustice described in this complaint, the Council will:
1. Pay Mr X a further amount of £300 to bring the total remedy award up to £800. This is to acknowledge the distress caused to Mr X and the wider family, and for unremedied injustice caused because of failure to deliver provision.
2. Complete a case review for Y and establish an action plan to ensure 1:1 support is formally in place for Y via a teaching assistant, and co-ordination of the package is overseen by a delegated staff member, as per Y’s EHCP.
41. The Council will complete action point a and b within one month of the Ombudsman’s final decision. The Council will provide the Ombudsman with evidence it has completed the above actions.

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Final decision

42. I have concluded my investigation having made a finding of fault. There was delay in finalising Y’s EHCP, and the Council failed to provide Y with a laptop that could be used outside of the educational setting. I acknowledge that whilst 1:1 support and co-ordination of the educational package have not been delivered as per the terms of the order, Y has not been caused a significant injustice as this provision has been delivered through Provider A. The Council has accepted my recommendations.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman