Summary: There was delay in an EHC needs assessment which delayed the issue of a final EHC plan. This in turn delayed when a child could receive the special educational provision they required. The Council will apologise and make a financial payment to acknowledge the impact of the delay.

The complaint

1. Ms X complains the Council delayed in issuing an Education, Health and Care (EHC) Plan which meant her daughter did not have the help in school she needed.
2. Ms X also complains about poor communication by the special educational needs (SEN) team.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (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. This complaint involves events that occurred during the COVID-19 pandemic. We can consider whether the council provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
7. If we are satisfied with a council’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 information provided by Ms X and the Council including:
• EHC plan
• Complaint correspondence.
9. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability (SEND) code of practice: 0 to 25 years (‘The Code’)
10. I have considered guidance issued by the Ombudsman including Guidance on Remedies and Focus Reports on SEND and EHC plans.
11. I have also spoken to Ms X by telephone.
12. 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.
13. Ms 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

Chronology of events

14. The Council says Ms X made a request for an EHC needs assessment on 25 January 2021 but it could not open the documents so asked Ms X to resend them on 29 January. The Council should have decided whether to assess within six weeks but took seven weeks. It declined to assess. Ms X successfully appealed to the SEND Tribunal which overruled the Council’s decision on 23 June.
15. The Council issued a final EHC plan on 10 November 2021, six weeks late.
16. Ms X says the Council acknowledged the delay and said this was due to the caseworker being off sick and the fact that advice could not be obtained from occupational and speech therapy over the school summer holidays because the Council had no contract with therapists for those six weeks.
17. The Council told me when it conceded the appeal and agreed to commence a statutory assessment, advice was sought from the Educational Psychology Service, Medical advice and social care advice on 13 July 2021. Advice from speech and occupational therapy was requested on 24 August 2021. The advice should have been received by 5 October 2021. Speech therapy advice was received on 4 October and occupational therapy on 13 October.  The occupational therapy advice was nine days late, but the Council acknowledges the overall delays were not attributable to health partners but because therapy advice was not requested at the same time as educational psychology, medical and social care advice.
18. The Council told me this was due to the administration being carried out by business support staff who were covering due to the summer holidays and general staff shortages.  The Council says this process has been reviewed and any request for additional advice is referred back to the Learners Single Point of Access to make a decision on additional advice requested as part of the assessment.  This would be discussed at the Multi-Disciplinary Team meeting which has a member of both the occupational and speech therapy service on the panel. The Council considers this would avoid the same situation from occurring again. 
19. When the final EHC plan was issued Ms X’s daughter became entitled to twenty-five hours per week one-to-one teaching assistant (TA) support, as well as other therapies and special educational provision.
20. Ms X told me the school had tried to put some of this support in place before the EHC plan was issued, once it had seen professional advice, but it struggled to do so because of lack of dedicated staffing. Ms X told me this meant that her daughter did not have her full access to sensory circuits, speech therapy sessions and some of her specialised curriculum. Ms X says a child was assigned to help her daughter and the class TA provided some support. Ms X said her daughter found this very stressful and hated school. Since the EHC plan was finalised and the TA support put in place this has changed and Ms X says her daughter is now doing brilliantly and enjoying school.
21. Ms X said the school knew that a TA would be needed in advance of the final plan so was able to secure this within a week to ten days of the plan being issued.
22. Ms X said she had to continually chase the Council for the final EHC Plan which put her to a lot of unnecessary time and trouble. Ms X said many of her enquiries were ignored despite promises from Managers the service would improve.
23. The Council’s stage two response said the SEN team had experienced high staff absence due to COVID-19. It explained to Ms X that while there is usually a twenty-week period to issue a final EHC Plan from when the Council receives a request, this timeframe ends when a decision not to assess is made and the parent given a right of appeal. If the Tribunal makes an Order to assess then Regulation 44(b)(ii) applies which states if the Council decides to issue a plan after an assessment it must send the finalised plan as soon as practicable and in any event within fourteen weeks of the date of the Tribunal’s Order.

Analysis

Fault

24. The Council should have responded to the request to assess within six weeks but took seven. This delayed Ms X’s right of appeal by one week.
25. The Tribunal ordered the Council carry out an assessment on 23 June. The Council should have issued the final plan by 29 September. It did not issue it until 10 November, a delay of six weeks. The provision was then put in place by the school promptly.
26. The Code says provision should be in place from the date of the final plan. Where the Council has clear knowledge of the provision needed delay is not acceptable. Our Focus Report SEN – preparing for the future [2014] says we expect straightforward provision to be in place within four weeks. This was met.
27. There was therefore an overall delay of seven weeks. This was fault. I acknowledge the Council faced difficulties with staff absence due to COVID-19, which affected its level of service and communication.
28. The Regulations do provide an exception to timeframes for issuing final EHC plans when advice is being sought from an education setting over the school summer holidays, however this exemption does not apply to health professionals such as speech or occupational therapists unless employed by a school. The Council has acknowledged it was responsible for the overall delay.

Injustice

29. As a result of the Council’s delay, Ms X’s daughter missed out on up to seven weeks of special educational provision including twenty-five hours per week TA support which facilitated access to the special educational provision and therapies in her Plan.
30. Ms X was put to additional time and trouble chasing the Council.

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Agreed action

31. Within four weeks of my final decision, the Council will:
• Apologise to Ms X and her daughter for the faults and injustice identified.
• Pay Ms X’s daughter £600 for the loss of special educational provision caused by its delay. This takes into account the school was making some provision but could not provide one-to-one support or fulfil the EHC plan in full.
• Pay Ms X £100 for her time and trouble.
32. I have not made recommendations for service improvements as the Council has already taken steps (see paragraph 18 above) to ensure similar delays do not recur.

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Final decision

33. I have completed my investigation. There was delay in an EHC needs assessment. This in turn delayed when a child could receive the special educational provision they required and caused inconvenience to the parent. I am satisfied the recommended actions above are an appropriate remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman