Summary: Mrs X complained the Council did not issue her child with an Education, Health and Care Plan within statutory time frames and did not provide the provision in the Plan. Mrs X says this caused unnecessary and avoidable distress and impacted her child’s health. We find the Council at fault which caused Mrs X and her child injustice. The Council has agreed to make a payment and apologise to Mrs X.

The complaint

1. Mrs X complains about the Council’s handling of her child’s special educational provision. Specifically, she complains the Council:

1. Failed to issue two Education Health and Care Plans within statutory time frames;
2. Failed to provide the provision set out in the plan;
3. Failed to consult properly with other education establishments; and
4. Communicated poorly throughout the process.

2. Mrs X says this impacted her child’s mental and physical health and caused unnecessary stress to her family.

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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 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. 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)
8. 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

9. The EHC Plan is set out in sections. We cannot direct changes to the sections about a child’s needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
10. I have not investigated part c of Mrs X’s complaint. This is because the Council’s consultation with other education establishments is not separable from the name of the educational placement, which Mrs X could raise at the SEND Tribunal. And it was reasonable for Mrs X to use her right of appeal to Tribunal.
11. For this reason, I have only investigated parts a, b and d of the complaint.

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How I considered this complaint

12. I considered the information and documents provided by Mrs X and the Council. Mrs X and the Council had an opportunity to comment on a draft of this decision. I have considered all comments received before making this final decision.
13. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
14. I also considered the relevant statutory guidance, as set out below. I have also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

15. 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.

Statutory Timescale

16. 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.
• As part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist (EP) and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice.
• 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.

17. The Council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The Council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
18. There is a right of appeal to the SEND (Special Educational Needs and Disabilities) Tribunal about the educational provision and placement named in a child’s EHC Plan. This appeal right is only engaged once the final EHC Plan and accompanying letter have been issued.

EHC Plan Provision

19. The Council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan of (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)  

What happened

Statutory Timescales

20. The Council received a request for an EHC needs assessment for Mrs X’s child, Y, in late May 2022.
21. The Council accepted the request for an EHC needs assessment in early September and decided to issue a plan.
22. The Council received the EP advice for the EHC assessment in early October.
23. The Council issued the final EHC Plan in May 2023. It also issued the accompanying letter with details of Mrs X’s right of appeal. The Council told Mrs X the delay in issuing the final Plan was due to not being able to meet a rise in requests for assessments.
24. In January 2024, the Council had an emergency EHC Plan review meeting. After the review meeting, the Council did not issue a final EHC Plan or accompanying decision letter to Mrs X. As of August 2024, the Council has yet to send Mrs X the final EHC Plan and accompanying decision letter.

EHC Plan Provision

25. Y has several health conditions.
26. In January 2023, the school placed Y on a reduced timetable.
27. Y’s school told the Council it could not meet Y’s needs in February, March and early May.
28. In late May, the final EHC Plan named the mainstream school Y was already attending. It set out provision which includes:
• Consistent staffing who have completed specialist autism training;
• A low arousal environment with bespoke transitions between lessons;
• A bespoke curriculum for Y;
• Being taught in small groups;
• Opportunities for Y to use a calm space; and
• Additional educational interventions.
29. In June, the school told the Council it could not meet Y’s needs as set out in the Plan.
30. In September, Mrs X made a formal complaint to the Council about the lack of specialist provision for Y at the school.
31. In response, in December the Council told Mrs X it would complete an emergency review of Y’s EHC Plan.
32. In January 2024, the Council held an emergency EHC Plan review meeting. It was agreed Y needed a place in a specialist school. The Council told Mrs X it would consult with specialist schools and the process should be completed by February half term.
33. Mrs X and the school did not hear from the Council following the review.
34. Y remains in the same mainstream school on a reduced timetable.

Communication

35. The Council consulted with several schools in September and October 2023 and updated Mrs X with the outcome in its complaint response in December.
36. Following the review meeting in January 2024, the Council did not contact Mrs X until early August following the Ombudsman’s involvement.

Analysis

Statutory timescale (part a of complaint)

37. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The request for an assessment for Y was made in late May 2022 and the Council made its decision to assess in early September. The statutory guidance says councils should make this decision within six weeks. In Y’s case there was a nine week delay. This is fault and caused Mrs X and Y injustice.
38. Councils must seek EP advice as part of an EHC assessment. This should be received within six weeks of the council requesting it. In this case the Council requested the advice in early September and received it in early October. This was in line with the timescale so was not fault.
39. The process from a request for an EHC Plan to the Council issuing a final Plan should take a maximum of 20 weeks. The Council should have issued Y’s final Plan by mid-October 2022. It issued it in mid-May 2023. This delay was almost seven months longer than the timescale allows. This is fault and caused Mrs X and Y injustice.
40. At emergency review in January 2024, the Council’s decision was to amend the Plan. The statutory guidance says councils should issue a final EHC Plan within 12 weeks after a review. Therefore, the Council should have issued Y’s final EHC Plan in early April. Instead, it has yet to issue the amended final plan. This is excessive delay and is fault which is causing Mrs X and Y ongoing injustice.
41. The Council has recently told the Ombudsman about the actions it is taking to meet the increased demand of the EHC assessments and improve its SEND service in relation to other cases. Therefore, I am not making service improvement recommendations in this case.

EHC Plan Provision (part b of complaint)

42. The Council recognised the mainstream school was not the best setting for Y. It says it named it in Y’s EHC Plan in May 2023 because of limited progress consulting with other specialist placements. The Council says it provided additional funding for the school to provide the provision set out in Y’s EHC Plan and was confident the school was securing the correct provision. However, the school told the Council in June it was unable to meet Y’s needs and meetings about a lack of funding to provide the provision were ongoing until December.
43. In January 2024 the Council had an emergency EHC Plan review meeting. The minutes of this meeting include the planned amendments to Y’s EHC Plan, which the Council is yet to issue. The minutes detail an increase in Y’s special educational needs and physical health needs. There is no evidence Y’s special educational provision at the school was discussed at this meeting, except that the school requested backdated funding.
44. The Ombudsman recognises it is not reasonable for councils to have oversight of the delivery of every provision, to every child with an EHC Plan, at all times. However, it is reasonable the Council satisfies itself provision has been secured and reviews this on an annual basis and follows up any concerns of no provision. In this case, I am not satisfied the Council demonstrated its due diligence to ensure Y was receiving the correct provision as set out in the Plan. This is because the Council knew the school was struggling to provide the provision after the final Plan, meetings about funding Y’s provision continued until January 2024 and there is no evidence it checked the provision during the emergency review meeting. This is fault and caused Mrs X and Y injustice.

Communication (part d of complaint)

45. The Council accepts its poor communication with Mrs X which has caused her avoidable and unnecessary distress. It recognises Mrs X’s efforts to contact the Council. It has offered to apologise and make a payment to Mrs X in recognition of its poor communication.

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Agreed action

46. The Council has suggested the following remedies, which I am satisfied are suitable. Therefore, within four weeks of my final decision the Council has agreed to:
1. Provide a written apology to Mrs X and Y for the unnecessary and avoidable distress and uncertainty caused.
2. Make a payment of £700 to Mrs X to recognise the avoidable uncertainty and frustration caused by the seven month delay in completing Y’s initial final EHC Plan. That equates to £100 per month of delay.
3. Make a payment of £400 to Mrs X to remedy the injustice caused by the delay in the Council issuing Y’s final amended EHC Plan (this is calculated from April 2024 up until August 2024) and the Council is to pay an additional £100 per month after this date for each month of delay thereafter.
4. Make a payment of £700 to Mrs X to reflect the injustice caused in parts b and d of her complaint.
47. 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.
48. The Council should provide us with evidence it has complied with the above actions.

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Agreed decision

49. I have completed my investigation. I find the Council at fault and this caused injustice. The Council has agreed to make a payment and apologise to Mrs X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman