Summary: The Council took too long to issue an Education Health and Care (EHC) Plan for Ms B’s child. It did not communicate with her properly during this time, nor respond adequately to her complaints. The Council did not do enough to satisfy itself that the provision was being made when Ms B raised concerns. This caused Ms B distress and frustration and it is likely that her child missed out on provision she was entitled to. The Council has agreed to apologise to Ms B and pay her symbolics payment in respect of the distress its failings caused her, and in respect of her child’s missed educational provision; and remind staff to deal with concerns that provision is not being made.

The complaint

1. Ms B complains about how the Council dealt with her child’s special educational needs. In particular she says the Council:
• Took too long to issue the final Education Health and Care (EHC) Plan for her child;
• Failed to make the provision set out in the EHC Plan, in particular it did not make sure that the Speech and Language Therapy, nor the 1:1 intervention was provided;
• Failed to properly remedy the delay in the EHC Plan process and took too long to notify her of the remedy following the issue of the final Plan; and
• Failed to communicate with Ms B properly or keep her updated.
2. Ms B says that the Council’s failings have meant that her child’s mental health deteriorated significantly so that her GP recommended she keeps her out of school. The Council also caused Ms B distress and uncertainty.

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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. 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

5. I considered the information provided by Ms B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. I have considered the comments of both parties before issuing this final decision.
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 found

The law and guidance

EHC Plan process

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. 
• 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);  
• 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’s duty to make sure EHC Plan provision is made

9. 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 (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)  
10. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

The Council’s complaints procedure

11. The Council’s complaints procedure has two stages. The complainant should receive a response to their stage one complaint within 15 working days. If the complainant is not happy with the Council's response, they can ask the Council for a stage two review. The Council’s procedure says it will response to a stage two request within 20 working days.

What happened

12. Ms B’s child, K, has special educational needs. Ms B requested an EHC needs assessment at the beginning of March 2023. This means that the Council should have informed Ms B whether it would complete an assessment or not by 12 April 2023. The Council did not tell Ms B that it had decided to go ahead with the assessment until 25 April. The Council’s decision was two weeks late. In the meantime, Ms B had chased the Council for a response.
13. The next step was for the Council to assess the child’s needs and decide whether to issue an EHC Plan. The Council should have done this within 16 weeks of the needs assessment request; so by 21 June, with a final Plan being due on 22 July.
14. The Council did not contact Ms B and so at the end of June, she made a formal complaint about the lack of progress.
15. The Council told Ms B that it would notify her whether it would progress to an EHC Plan by 4 August. However, by this stage, her child’s health was deteriorating. Ms B sent the Council a letter from the GP noting a significant and worrying deterioration in the K’s mental health due to the school environment. The GP confirmed they had advised Ms B to keep K off school until adequate provision is in place so that she does not feel suicidal.
16. On 4 August, the Council told Ms B that it would issue an EHC Plan. The Council had already taken too long to get to this stage and the deadline to issue the final EHC Plan had already passed.
17. Again, the Council did not contact Ms B again and so she chased it for an update. On 15 September, the Council wrote to Ms B. It apologised for the delay. It said that in the meantime, if the school needs to put in place extra support, it can apply for top-up funding. Ms B made a further stage one complaint that day. She said the Council had not issued the draft Plan nor updated her as to when she might receive it. The Council should have responded to the stage one complaint within 15 working days, so 6 October.
18. The Council actually responded to the complaint on 25 October. It apologised for the delay, but again gave no indication of when Ms B might receive the draft Plan. That day, Ms B asked the Council to review her complaint at stage two of its complaints process.
19. The Council’s stage two response was due on 22 November. Ms B chased the Council on 23 November. She had not received a response to her complaint, and the Council had still failed to give her any news on her child’s EHC Plan. Ms B said the lack of communication was outrageous.
20. The Council responded to the stage two complaint on 30 November. It apologised for its late reply. It upheld Ms B’s complaint and told her that it would allocate her case soon so that it could issue a draft EHC Plan. The Council said that once it had issued the final Plan, it would compare the provision the child had received at school with that set out in the Plan, and it would propose a suitable remedy. This might be extra provision to help them catch up, or a payment that Ms B could use for her child’s education. The Council again said that the school could apply for top-up funding if it needed to put extra support in place while it was waiting for the EHC Plan.
21. Ms B told the Council that the school had applied for top-up funding but it had been refused. The Council later explained that this was because its funding panel had decided that the provision for which the school had requested funding could be met within the ordinarily available school provision and this included a notional budget for additional spending on a pupil’s special educational needs. Together the support could be covered by these provisions.
22. The Council issued the draft EHC Plan on 8 December. This was agreed and so it issued the final EHC Plan on 19 December. The Council should have issued the final EHC Plan within 20 weeks, so by 22 July. This means the Council delayed the final EHC Plan by nearly 22 weeks.
23. The final EHC Plan says that among other provision, Ms B’s child should receive:
• An individual curriculum supported on a 1:1 basis by a staff member with additional training and experience. The 1:1 support would be throughout the day and include specified subjects two hours per day, as well as an additional 15 minutes to identify positive aspects of the day.
• Carefully planned group work in a small, supervised group.
• A block of four 1:1 speech and language therapy sessions with a speech and language therapist. Part of the session will be direct therapy and the other part will be liaison with the school staff.
• Two sessions of speech and language therapy weekly with the staff member who attended the therapist run sessions.
24. The Council agreed the funding that the school had requested to implement the EHC Plan. It has explained that it set this up from 19 December, the date of the final EHC Plan.
25. Ms B learned that the school had not received the funding from the Council to implement the EHC Plan. The Council again explained that this was because it expected the school to use the notional budget allocated to all schools to begin with.
26. Ms B disputed this approach with the Council. She said the school needed the funding to implement her daughter’s EHC Plan.
27. In March 2024, (in line with its earlier complaint response), the Council decided that it would backdate the funding to 1 September 2023 to make up for the provision that Ms B’s child had missed when the Council had failed to issue the EHC Plan in time. The Council says that this was paid in a one-off payment to cover the missed provision and the top-up funding the school had asked for.
28. The Council has explained to me that the funding was delayed due to staffing capacity. It has reviewed how it approves funding for EHC Plan provision and now senior members of staff dedicate a set time weekly to consider funding requests.
29. Ms B says that her child has never received the 1:1 support and has never received speech and language therapy. I asked the Council to send me details of what provision has been made and when. It told me that it had given funding to the school to deliver the EHC Plan provision.

Was there fault by the Council causing injustice to Ms B and her child?

30. There was fault by the Council. It took far too long to progress the EHC Plan, taking over double the legal timeframe. During this time, the Council also failed to communicate properly with Ms B. It is likely that during this time, K did not receive the provision she was entitled to.
31. The Council acknowledged that it was taking too long but its complaint responses were also late and were not always adequate. It apologised but gave no indication of when it might send Ms B the overdue EHC Plan.
32. Moreover, the Council did not fully take account of the impact on Ms B and her child. The Council did not offer her any support or explanation, despite the GP informing it that the child’s health was deteriorating significantly. Although the child managed to stay in school, it is unlikely that she received the provision to which she was entitled.
33. It appears that there was a disagreement between the school and the Council about the amount of funding and that the Council delayed starting the funding. The Council has a duty to make sure that the EHC Plan provision is made. It can ask the school to deliver this but it cannot delegate its responsibility to the school. The issue of funding is between the school and the Council and Ms B should not have felt the need to get involved in this.
34. From March 2024, it should have been clear to the Council that Ms B was concerned her child was not receiving the EHC Plan provision. She had continued to contact the Council with her concerns about funding and said that the school needed this to implement the EHC Plan. This was enough to alert the Council that Ms B had concerns the provision was not being made, and I would have expected the Council to check this with Ms B and the school to make sure.
35. The Council has not done so, and in answer to my enquiries about provision, was unable to provide any details except that it had sent funding. Again, whether there is sufficient funding is a question for the school and the Council. The bottom line is that the Council must make sure that the provision is made, but failed to do so despite Ms B’s concerns.
36. Similarly, the Council did not appropriately remedy the injustice it caused to Ms B and K when it took too long to issue the EHC Plan. It cannot be sure that the impact on K would be remedied by backdating the funding and I would have expected to see it direct how that should be used to catch up on the missed provision. The Council cannot be certain that the remedy is appropriate.
37. In addition, the Council did not remedy the distress and uncertainty its delay caused Ms B, or the additional time and trouble she was put to when it did not respond to her complaints fully. I also note that it took the Council from December 2023, when it issued the EHC Plan, until March 2024 to offer this remedy.
38. In summary then, there was fault by the Council. It took too long to issue the EHC Plan, more than double the legal timeframe. The Council failed to communicate properly with Ms B or respond appropriately to her complaints. It also did not ensure that provision was made when Ms B raised concerns about this.
39. The Council’s shortcomings caused Ms B and her daughter distress, and put Ms B to additional time and trouble pursuing the Council for progress. It is likely that K missed out on provision that she would have received had the Council acted without delay and had it made sure that the school was able to implement the EHC Plan when Ms B raised concerns. This means we cannot be sure that K received the correct provision from September 2023 (the start of term after the EHC Plan was due) to December 2023, when it was issued. And from March 2024 when Ms B raised concerns to the end of the school year, when Ms B complained to the Ombudsman. In total that is 2.5 terms of missed provision.
40. The Council took too long to offer Ms B a remedy in recognition of the impact on her and her daughter, and when it did, the remedy was not sufficient.
41. As part of a separate, earlier investigation involving another family, the Council agreed to make an action plan to show how it would meet the legal timescales for all stages of the EHC Plan process. The Council’s action plan states that it increased staffing, including senior staff; would hold additional panels to decide on EHC Needs Assessment requests and whether it should issue a Plan, has worked to automate some processes; has senior staff engaging at an earlier stage to identify children who may need specialist provision; improved its funding processes so that they are better coordinated; sought ways to improve communication; and updated staff training. As such, I have not recommended further service improvements relating to the EHC Plan process.

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Agreed action

42. The Council will within one month of the date of this decision:
• Apologise to Ms B. 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 to Ms B a symbolic payment of £500 in respect of the distress it caused her when it took significantly too long to issue the EHC Plan and failed to communicate with her properly.
• Pay to Ms B a symbolic payment of £150 in respect of the additional time and trouble she was put to when the Council failed to respond fully to her complaints.
• Pay to Ms B a symbolic payment of £2,250 in recognition that it is likely her daughter did not receive the provision to which she was entitled during the school year 2023/2024. Ms B can use this payment for the benefit of her daughter as she sees fit.
• Share this decision with staff, and remind relevant staff to be alert to concerns that an EHC Plan is not fully implemented, so the Council can be certain it is meeting its duty to make sure the provision is made.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have completed my investigation. There was fault by the Council causing an injustice to Ms B and her child.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman