Summary: Mr X complained the Council delayed issuing an Education, Health and Care (EHC) Plan for his daughter (D) and failed to communicate effectively. The Council is at fault for delay in issuing the draft and final EHC Plan. The Council also failed to communicate effectively. This has impacted on D’s learning and caused distress to Mr X and the whole family.

The complaint

1. Mr X complained the Council delayed issuing an EHC Plan for his daughter (D) and failed to communicate effectively. He says this caused missed education for his daughter and stress for the whole family. Mr X wants the Council to improve the service, offer better communication, and compensation.

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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 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)
4. 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.

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How I considered this complaint

5. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Education Act 1996, The Children, Schools and Families Act 2010, The Children and Families Act 2014, the Special Education Needs Regulations 2014, Special education needs and disability code of practice.
6. Mr X 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

Relevant legislation

7. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 

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 the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

9. 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.

10. Those consulted have a maximum of six weeks to provide the advice.
11. 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.
12. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

13. I have summarised below the key events; this is not intended to be a detailed account.
14. D lives with her parents and sibling. She received a diagnosis of attention deficit hyperactivity disorder (ADHD) when she was seven years old. She is on the Autism Pathway.
15. D left primary school and started to attend secondary school (School A) in September 2022. Her attendance started to decline, and the school offered a reduced timetable.
16. In July 2022, D started to attend School B, a Pupil Referral Unit. She attended full days.
17. Teachers at School B and Mr X worked together to complete a request for an EHC needs assessment which they submitted in September 2022. The Council confirmed receipt and said Mr X would receive an EHC plan in mid-January 2023.
18. The Council sought advice from relevant professionals, including the Educational Psychologist (EP), at the end of September.
19. In early November, the panel agreed to an EHC Needs Assessment. A couple of weeks later it agreed to draft a plan. It could not draft the plan until it received the advice from the EP.
20. After Christmas, Mr X said he struggled to get D to attend School B. She attended for roughly 45 minutes a day.
21. Mr X did not receive the EHC plan in mid-January as promised by the Council in earlier correspondence.
22. From February 2023, D did not attend School B.
23. The Council received the report from the EP at the end of February.
24. From March 2023, the Council offered D home tuition under its Section 19 duties for education for sick children. In conversation with me, Mr X said D had panic attacks on the days the teacher was due to come. Mr X cancelled the sessions in April, he said they were not working for D.
25. During this time, Mr X said he emailed the Council on several occasions asking about the progress of the plan. He said he did not receive a response.
26. The Council issued the draft EHC Plan in early May and sent this to Mr X and schools for consultation. The following week, the parents accepted the draft.
27. In May, School A said it did not feel it was the right place for D as she had not attended for some time. School B and School C also responded to the consultation. In June, School C offered a place to D. The Council told D’s parents it was considering all the alternatives following the consultation responses.
28. In early July, the panel discussed the case and agreed in principle for D to attend School C. This senior leaders ratified this a week later and the Council issued the final EHC plan in late July.
29. D started at School C in September 2023. Mr X said it is ‘going brilliantly’.
30. The Council said it ended provision for home tuition when D started at School C.
31. The Council held a review of the plan in November. In response to my enquiries the Council said it is confident D is engaging and making progress.

Complaint to the Council

32. Mr X complained to the Council in late April 2023. He said he had not received the EHC plan as promised or a response to his correspondence.
33. Mr X received a stage one response within a week. The Council apologised for the delay in issuing the EHC Plan and said it would send a draft by a specific date at the beginning of May. The Council issued the draft EHC plan five days later than promised.
34. Mr X asked for a stage two review of his complaint at the beginning of May. The Council responded at the beginning of June. It upheld Mr X’s complaint and recognised there was poor communication and apologised. It also recognised there was a delay in issuing the draft EHC plan which it had since issued.
35. In its stage two complaint response, the Council explained the EHC planning team received an unprecedented number of new assessment requests over a 12-month period and staff absence had impacted on its ability to draft plans within the timescales. It said it was addressing this through increasing case workers, employing agency staff, creating senior roles and engaging an extra manager. It expected each caseworker would have less cases, enabling them to provide better communication.

Complaint to the Ombudsman

36. Mr X complained to the Ombudsman in September. He said D received the final EHC plan six months late. D was without education during this time. This caused stress and anxiety to the whole family and made his wife ill.
37. The Council explained it has taken extra measures to improve the situation, since its stage one and two responses to Mr X’s complaint. It said it has recruited additional EHCP Coordinators and has addressed competency issues with existing EHCP Coordinators where needed. It is reviewing all processes from Special Education Needs Support and to issuing and maintaining EHC Plans and is confident this will bring change over the next 12 months.

Analysis

38. The Council should decide whether to asses a child within six weeks of the request for a needs assessment. Mr X asked for an assessment in late September 2022 and received a decision in early November. This was within the six weeks timescale. The Council is not at fault.
39. The regulations say the Council must consult with relevant professionals and they must provide their advice within six weeks. The EP report was completed within five months which is delay and fault. This impacted on the Council’s ability to draft the EHC Plan.
40. The Council should have provided Mr X with a draft EHCP to comment on by the middle of January, this is 16 weeks after the request for an assessment. The Council issued the draft response in early May. This is a delay of roughly 16 weeks, or four months. This is fault.
41. The statutory guidance says the Council has 20 weeks to issue an EHC Plan from the date it receives a request for an EHC needs assessment. The latest D should have received a final EHC Plan was the middle of February. The Council issued the final EHC Plan in the middle of July. This is roughly a 22 week delay, or five months. This is fault.
42. In its complaint response, the Council accepted it had delayed in issuing the EHC Plan, it recognised it was at fault. It also admitted there was a lack of communication from the EHC Plan Team and apologised.
43. Mr X complained D was out of full-time education for six months while she waited for an EHC assessment and plan. When the Council became aware of D’s attendance declining at School A, it found her a place at School B which supports pupils with emotional wellbeing and mental health needs. When her attendance declined at School B, the Council offered her a specialised placement within the same school. When it was aware this was no longer working for D, it arranged home tuition for her. Mr X said he stopped the lessons in April, but these were still available to D until she started at School C. I consider the Council was flexible and provided alternative provision to full time education for D and met its Section 19 duties in this case.

Summary

44. The Council is at fault for delay in obtaining a response from the EP and delay in issuing the draft and final EHC Plan. The Council is also at fault for failing to communicate effectively. The Council provided alternative provision and met its Section 19 duties.

Injustice

45. D and her family did not know what support she might be provided until they received the EHC Plan. This caused distress for the whole family and uncertainty because of a delayed right to appeal the final plan if they were unhappy with it.
46. The lack of correspondence about the progress of the EHC assessment and plan caused additional distress at an already stressful time.

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Agreed action

47. The Council has now issued a final EHC plan which Mr X is happy with and D has engaged with. This limits any further injustice.
48. The Council apologised for its poor communication, delay in assessing D and the delay issuing an EHC Plan which is correct.
49. The Council has put measures in place to address staffing issues and is reviewing its processes. I do not need to make any further service improvement recommendations.
50. Within four weeks of my final decision, the Council should:
• Pay Mr X for the benefit of D, £500. This is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan until the date it issued the plan five months later.
• Pay Mr X £300 for the avoidable distress caused by poor communication.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have completed my investigation. The Council is at fault for delay and failing to communicate effectively. This has caused distress to D and her family.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman