Summary: There was fault by the Council. There was a delay in issuing an Education, Health and Care Plan of seven and a half months and the loss of education for a term. The Education, Health and Care Plan has now been issued, with an offer of a school place. A remedy payment remedies the injustice of loss of education, uncertainty and a delay in appeal rights to a tribunal.

The complaint

1. The complainant, who I shall call Mrs X, complains the Council has delayed issuing an Education, Health and Care (EHC) plan after a needs assessment and has not met the legal timescale.
2. Mrs X also complains the Council has not put in place alternative educational provision when it was aware her child, Y, was not in school from when a managed move failed in 2023.
3. Mrs X says her child has missed education and there was significant uncertainty as there was no suitable school place available for a period.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 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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What I have and have not investigated

7. I have investigated from January 2023 when the EHC needs assessment application was made until January 2024 when the EHC Plan was finalised and Mrs X had the right of appeal against the provision named in the plan.
8. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

9. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

10. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

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How I considered this complaint

11. I read the papers put in by Mrs X and discussed the complaint with her.
12. I considered the Council’s comments about the complaint and any supporting documents it provided.
13. Mrs X and the organisation 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

14. A child or young person with special educational needs may have an 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. 

15. 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 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).

16. The Council received the request for an EHC needs assessment for Y on 25 January 2023 and it made the decision to assess.
17. Y had a managed move to a school on 20 February 2023. This ended on 26 May but the Council became aware the placement had ended in September 2023.
18. Y was abroad with her family from 26 May to September 2023.
19. The Council decided to issue an EHC Plan on 13 October and consulted schools in November and December 2023.
20. The Council issued the EHC Plan on 12 January 2024. Y attended the school but Mrs X then withdrew her. Mrs X requested mediation on 5 March and after this, a new EHC Plan was issued naming a different school.

EHC Plan needs assessment delay

21. The Council has said there was delay in the needs assessment process. This was fault.
22. The needs assessment process should take 20 weeks. It should have been complete by 21 June but it took 50 weeks in total. This is a delay of 30 weeks or 7 and a half months.
23. Section 9.4.2 of the Special Educational Needs and Disability Code of Practice (2015) says ‘where there are exceptional circumstances, it may not be reasonable to expect Council to comply with the time limits. These include:
• The child or young person is absent from the area for a period of at least 4 weeks.
• The school is closed for at least 4 weeks, which may delay the submission of information from the school.

The child’s parent should be told if exemptions apply and as soon as the condition that led to an exemption no longer apply, the Council should complete the process as quickly as possible’.

24. The Council has said that it considers that an exemption should be made for 12 weeks as Y was out of the country from May to July 2023. Mrs X has said the family were away from 26 May until the end of the summer holidays. I can see no evidence the Council tried to contact the family from 26 May until the end of the summer holidays. If the Council has evidence that it was waiting for a response from the family between 26 May until the end of summer holidays, then I think it is reasonable for the Council to count the waiting time as an exemption. But, if the Council was not waiting for information from Mrs X and did not write or email her at the time to explain the exemption then I do not consider that it is reasonable for the Council to decide, after the event, there was an exemption period. This is especially the case as the Council has accepted that it was not aware that Y was out of school until September 2023 and there is no reason it could not have contacted the family via email/telephone while they were away.
25. The Council has explained that it considers there should also be an exemption for 4 weeks, as it was waiting for information from a school over the summer holidays. Again, I have not seen any evidence the Council wrote to the school just before or during the summer holidays so I do not consider there would be a reason to apply the exemption. Especially as the needs assessment should have been completed before the summer holidays started.
26. There was delay by the Council in carrying out the EHC Plan needs assessment. Unless the Council has written evidence that it was waiting for a response from Mrs X or the school, I cannot see a reason for any exemptions to be made to the timescale. Our guidance on remedies recommends a payment of £100 per month for delay in issuing an EHC Plan. This remedy is for the frustration caused to Mrs X, not for any loss of education. I consider that a payment of £750 is a satisfactory remedy, unless the Council can provide evidence that the delay was caused waiting for a response from Mrs X or the school.

Educational Provision

27. Mrs X has explained that her daughter was not in school from 26 May to the end of the summer term after a managed move failed. As Y was not in the country for this period Mrs X does not suggest that the Council should have provided education.
28. However, from September 2023 to January 2024 the Council has said it recognises that no education was being provided while the Council finalised the EHC Plan. The Council has offered a £900 payment towards the loss of a term’s education.
29. 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. As Y was in year 9 I consider the symbolic payment should be at the top end of range as the uncertainty of not having a school place or access to the right of appeal against the provision named in the EHC Plan in the run up to GCSE years would be significant. So, I recommend a remedy of £2400 for the lost of education for the winter 2023 term.

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Agreed action

30. Within one month of the date of the decision on this complaint, the Council should:
• Apologise to Mrs X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £3150.
31. Within two months of the date of the decision on this complaint, the Council should review its guidance for staff and processes to ensure:
• EHC Plan needs assessments are completed on time.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation of this complaint. This complaint is upheld, as there has been delay by the Council. The actions above remedy the injustice to Mrs X and Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman