Summary: The Council was at fault for causing a delay to Mrs B’s son’s special educational needs support. As it is unlikely that the benefit of this support can now be recovered, the Council has agreed to make symbolic payments to Mrs B to recognise the injustice she and her son experienced.

The complaint

1. The complainant, whom I refer to as Mrs B, complains that the Council took too long to decide how it would meet her son’s special educational needs. I refer to her son as C.
2. Mrs B says the Council’s delay caused C to lose education. She also says it delayed her right to appeal the Council’s eventual decision to the SEND Tribunal, and caused her distress.
3. The Council has acknowledged that it caused a delay, and has offered Mrs B £200 to recognise her, and C’s, injustice. Mrs B is dissatisfied with the Council’s offer.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I considered:
• Information from Mrs B and the Council.
• The statutory guidance document, ‘Special educational needs and disability code of practice’ (which I refer to as ‘the SEND code’).
• The Ombudsman’s guidance on remedies.
8. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The SEND code

9. Parents (and others) can request that a council assesses a child’s special educational needs and issues an education, health and care (EHC) plan. This is a document which sets out a child’s needs and the arrangements which should be made to meet those needs.
10. The whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested until the final EHC plan is issued, must take no more than 20 weeks.
11. There are some exemptions to this 20-week timescale, including when a relevant educational establishment is closed for more than four weeks (and when this hinders a council’s information-gathering for the assessment).

What happened

12. C’s nursery contacted the Council in early July 2022 and asked it to consider an assessment of C’s special educational needs. At the end of July, the Council agreed.
13. The Council sought reports from an educational psychologist and a speech and language therapist. It also commissioned an autism assessment. It received all of these by October 2022, and it decided to issue an EHC plan.
14. The Council issued a draft plan in November, and, by mid-December, had asked three schools if they could offer C a place. Two of those schools said no in December.
15. The third school did not respond. But the Council did not contact the school again until the end of February 2023. It re-sent C’s draft EHC plan, and in early March the school said it could offer C a place.
16. The Council says that, between March and May, it exchanged correspondence with one of the schools which had not offered C a place, but the school did not change its mind. So, at the end of May, it met with the school which had offered C a place.
17. In early July, the Council completed C’s EHC plan and issued it to Mrs B. The plan was dated early May, but it appears the correct completion date was in July.
18. The plan included the following provision:
• A programme devised by a speech and language therapist and delivered by a trained teaching assistant.
• Six one-to-one speech and language therapy sessions, delivered by a therapist, before C started Reception.
• Small group teaching and one-to-one support.
• Other strategies and approaches to be delivered in lessons.

My findings

19. The Council was at fault for how long it took to finalise C’s EHC plan. It should have taken 20 weeks, plus an allowance for schools being closed in the 2022 summer holidays. But there was a delay of around six months.
20. I am satisfied that the delay meant there was a corresponding delay to C receiving the provision in the EHC plan. This is because the Council appears to have known what C’s needs were by October 2022. The remaining delay was related to the Council’s search for a school.
21. The delayed provision included six therapy sessions and an individualised programme aimed at developing C’s speech and language. The benefit of this provision can probably no longer be recovered (as C needed them at the time).
22. In line with the Ombudsman’s guidance, this means the most appropriate avenue to recognise C’s injustice is with a payment from the Council.
23. The Council has already offered Mrs B £200. But this does not appear to sufficiently recognise what C missed out on. It should increase its offer (as recommended below) and also offer Mrs B a payment to recognise her own injustice (which included a delayed right of appeal to the SEND Tribunal).

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Agreed actions

24. Within four weeks, the Council will:
• Make a payment of £500 to Mrs B, on behalf of C, to recognise C’s likely injustice from the delay to his special educational needs support.
• Make a further payment of £300 to Mrs B to recognise the distress she likely experienced from the Council’s delay, which also delayed her right of appeal to the SEND Tribunal.
25. Within two months, the Council will send us an action plan setting out how it will ensure similar delays do not happen when finalising EHC plans in future.
26. The Council will provide us with evidence it has done these things.

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Final decision

27. The Council was at fault for causing a delay to C’s special educational needs support.

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Investigator's decision on behalf of the Ombudsman