Summary: Mr X complained the Council delayed outside the statutory timescales in issuing his child’s Education, Health and Care Plan. Mr X also complained the Council failed to secure a suitable school placement for his child for September 2024. I have ended my investigation because the Council has offered a suitable remedy for the delays in production of the Education, Health and Care Plan. The SEND Tribunal is better placed to investigate the school placement named in the Education, Health and Care Plan.

The complaint

1. Mr X complained the Council delayed outside the statutory timescales in issuing his child’s Education, Health and Care Plan.
2. Mr X also complained the Council failed to secure a suitable school placement for his child for September 2024.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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)

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How I considered this complaint

8. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

10. 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. 
11. 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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).

What happened

12. Mr X’s child, who I shall refer to as Y, attended nursery in the academic year 2022/2023.
13. On 25 May 2023, Y’s nursery submitted an EHC Plan Needs Assessment application form to the Council. The Council agreed to undertake this assessment on 30 June 2023.
14. Mr X contacted the Council on 16 October 2023 to advise the deadline for production of the EHC Plan had passed. Mr X said he was concerned they would not be able to apply for a suitable SEN school for Y if the Council did not produce the EHC Plan in time. On 12 November 2023, Mr X raised a formal complaint with the Council about this same matter.
15. On 29 November 2023, the Council provided its Stage 1 complaint response. The Council said:
• It acknowledged it had delayed production of Y’s EHC Plan and said this was because of a lack of Educational Psychologists.
• It apologised for this delay and promised to provide updates every three weeks until it produced the EHC Plan for Y.
• Until it produced the EHC Plan for Y, Mr X would need to apply for a standard mainstream school through the normal admissions process.
• If the Council considered Y needed an SEN school placement following production of the EHC Plan a SEND Case Officer would explain the admissions process to Mr X.
16. The Council produced the Final EHC Plan for Y on 29 January 2024 and sent this to Mr X on 2 February 2024. Within the Final EHC Plan the Council confirmed in Section I that Y would attend a mainstream school. The EHC Plan noted Mr X’s preference for an SEN school for Y but did not recommend this.
17. On 28 February 2024, Mr X complained the Council failed to keep them updated, failed to consult SEN schools as part of the EHC Plan Needs Assessment and had not told them about any subsequent consultations.
18. The Council consulted Mr X’s preferred school who visited Y at Nursery on 8 March 2024. On 2 April 2024, Mr X’s preferred school said it did not consider it was suitable for Y.
19. On 4 April 2024, the Council provided a Stage 1 complaint response to Mr X:
• It had issued an EHC Plan naming a mainstream primary school.
• It was looking to secure a placement from September 2024 for an SEN school and its admissions team had begun this process.
• It agreed to issue a revised Final EHC Plan for Y naming a specialist educational placement in Section I.
• It apologised contact was not as regular as it promised.
20. Mr X sought escalation to Stage 2 of the Council’s complaints process. The Council issued its Stage 2 complaint response on 8 May 2024.The Council said:
• It acknowledged it had delayed issuing Y’s EHC Plan for three months and apologised for this.
• It would offer a symbolic payment for the delay in issuing the EHC Plan.
• It had no update on a school placement for Y but would arrange for the relevant service to provide an update for Mr X.
• Its complaints procedure could not consider the contents of a child’s EHC Plan and advised Mr X to go through the mediation process or appeal to the SEND Tribunal.
21. On 7 June 2024, the Ombudsman agreed to investigate Mr X’s complaint.
22. On 25 June 2024, the Council offered Mr X £300 as a symbolic payment for the three months delay outside the statutory timescales for an EHC Plan Needs Assessment.

Analysis

EHC Plan delays

23. Y’s school submitted an EHC Plan Needs Assessment application to the Council on 25 May 2023. The Council had six weeks to decide whether to assess Y. The Council decided to assess Y within this timescale. The Council acted correctly and was not at fault.
24. The Council had a total of 20 weeks from the application date to produce a Final EHC Plan. This meant the Council had until 12 October 2023 to produce the Final EHC Plan for Y. The Council failed to meet this deadline by slightly over three months. The Council has advised this delay was caused by a lack of Educational Psychologists. When a delay is caused by a lack of Educational Psychologists, the Ombudsman would consider this delay a service failure. However, the Council did not get input from an Educational Psychologist when it produced the Final EHC Plan. This means the delay outside the statutory timescales was fault rather than a service failure.
25. The Council promised, in its November 2023 complaint response, to provide updates to Mr X every three weeks until completion of the EHC Plan Needs Assessment process. The Council failed to keep this promise; this was also fault.
26. The Council has accepted its fault, apologised to Mr X and offered him £300 for its fault. This offer of £300 as a symbolic payment is in line with the Ombudsman’s guidance on remedies for the injustice caused to Mr X, and his family, through the fault by the Council. Since the Council has also already offered an appropriate remedy for the injustice caused, there is no reason for the Ombudsman to investigate this complaint.

School placement

27. Y had a school placement at a mainstream primary school and nursery. The Council named this school placement in Section I of the final EHC Plan sent to Mr X on 2 February 2024.
28. When the Council issued the final EHC Plan, Mr X gained an appeal right to the SEND Tribunal about the content of the EHC Plan. This included the school placement named in Section I of Y’s EHC Plan.
29. While the Council has advised it would amend the EHC Plan to name a specialist educational setting, it has not done this. Since it has not amended the EHC Plan, it only has a duty to provide the provision detailed in the plan; this includes the mainstream educational placement in Section I.
30. Should Mr X be dissatisfied with the Council naming a mainstream school in the EHC Plan, he would need to either enter formal mediation with the Council or appeal to the SEND Tribunal.
31. The Ombudsman cannot investigate the contents of a child’s EHC Plan. Only the Tribunal has the powers to require a council to make changes to an EHC Plan.
32. The Ombudsman also cannot investigate the consequences of a decision, if the decision itself is outside our jurisdiction. This means, we cannot investigate the consequence of the Council naming a mainstream school in Y’s EHC Plan since naming this mainstream school is outside the jurisdiction of the Ombudsman.
33. While Mr X may have considered an SEN school would be more suitable for Y’s needs, the Council made an educational placement available at a mainstream school for Y. This provision was available until at least 7 June 2024 when the Ombudsman agreed to investigate this complaint. The Ombudsman must give the Council opportunity to consider any complaint before the Ombudsman investigates it. Since we agreed to investigate Mr X’s complaint on 7 June 2024, we cannot investigate the Council’s actions after this date about Y’s educational placement. Even if we could investigate this, the SEND Tribunal is the more appropriate body to consider this complaint.

Final decision

34. I have ended my investigation but uphold Mr X’s complaint. The Council has offered a suitable remedy to resolve delays in issuing Y’s EHC Plan and no further action by the Ombudsman is needed. The SEND Tribunal is better placed to investigate any dispute over the school named in Section I of Y’s EHC Plan; it is reasonable for Mr X to raise the matter with it.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman