Summary: Mr C complained that the Council took too long to prepare an education, health and care plan for his son, X. The Council has accepted it was at fault. The fault caused Mr C injustice in the form of distress and frustration. However, it did not adversely affect X’s education. As the Council is already working with the Department for Education to improve its special educational needs systems, we have made no recommendations for systems improvements. The Council has agreed to apologise and pay Mr C a sum in recognition of the distress the family has been caused.

The complaint

1. The complainant, Mr C, says the Council took too long to prepare an education, health and care plan (EHCP) for his son, X.
2. Mr C says this caused injustice because X missed the education and support he needed. He says X regressed and the education Mr C paid for was wasted.
3. Mr C says he wants an apology, a financial payment and changes to Council systems to ensure that similar errors do not happen in future.

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What I have investigated

4. I have investigated the events leading up to the time the final EHCP was issued. Mr C appealed the EHCP to the Special Educational Needs and Disability Tribunal and it became a matter for the courts and out of our jurisdiction.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure. ’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)
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 Tribunal’ in this decision statement.
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. 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

10. I spoke to Mr C and using the information he provided wrote an enquiry letter to the Council. I considered all the available information and applied any relevant law and guidance to write a draft decision.
11. Mr C 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

What should happen

Education, Health and Care Plans (EHCPs)

12. The Department for Education has issued the Special educational needs and disability code of practice: 0 to 25 years guidance (’the guidance’) which sets out the way in which councils must provide education for those with special educational needs.
13. The responsibility for providing support to children and young people with special educational needs (SEN) is shared between councils and education settings.
14. Most children and young people will have their SEN needs met within early years settings, schools or colleges without any need for involvement from their council. This level of support is known as SEN Support. Children with more complex needs might need an EHCP. Councils are the lead agency for carrying out assessments for EHCPs and have the statutory duty to ensure special educational provision specified in an EHCP is made available.
15. A timetable which councils must follow when considering EHCP requests is set out in the guidance. The process from the date of the request to the final decision must not take more than 20 weeks.
• A council must inform the parents of a decision to conduct or not to conduct an EHCP assessment within six weeks of the date of the request. If they decide against an assessment, they must also inform the parents of their right of appeal.
• If, after assessment, the council decides that an EHCP is not needed, it must inform the parents of this, and of their right of appeal, within 16 weeks of the initial request for assessment.
• If the council decides an EHCP is necessary, it must prepare a draft EHCP and send it to the parents. It must allow the parents 15 days to respond. If an educational establishment needs to be named as the school which will provide the education and care set out in the EHCP, the draft must be sent to the school which must also have 15 days to comment. The final EHCP must be issued within 20 weeks of the initial request.

Principles of good administration

16. The Ombudsman has issued a short document, Principles of Good Administration which states, among other things, that keeping proper and accurate records is important to good administration.

What happened

17. Mr and Mrs C live in the Council’s area with their child, X, who was born in 2016. On 18 February 2020, when X was nearly four years old, Mr C asked the Council to assess X for an EHCP. The Council acknowledged the request the next day.
18. On 27 March 2020, the Council told Mr C that it would assess X for an EHCP. The final EHCP should have been completed by 7 July 2020.
19. Mr C heard nothing from the Council for eight months. On 2 December 2020, he complained formally to the Council about the lack of progress. He received a response on 15 December 2020. The Council apologised and said the draft would be sent to him no later than 21 December 2020.
20. In fact, the first draft EHCP was delivered to Mr C on 25 January 2021. The final EHCP was issued on 10 March 2021. This means that 55 weeks had elapsed since Mr C’s initial request.
21. Mr C then complained to the Ombudsman. He also appealed to the Tribunal about the contents of the EHCP.

Was there fault causing injustice?

22. The guidance is clear that the EHCP process should take a maximum of 20 weeks. In this case, the process should have been completed by 7 July 2020. It was not completed until 10 March 2021. This was fault.
23. The Council has said, by way of explanation, that it decided, from 1 September 2020 onwards, to pass all cases like X’s through the EHCP assessment process. It said that this put pressure on its systems because of the increased number of cases it had decided to process. However, this cannot be accepted as an explanation as, by 1 September 2020, X’s EHCP was already late.
24. The Council said, in response to my enquiries, “Individual officers are supported, through the management structure, to prioritise cases and manage their workload appropriately. However, sometimes errors occur. Regrettably this was the case for Mr [C] when an officer did not complete the task within the timeframe agreed.”
25. I asked the Council for the case file including any notes and other records to show how it progressed X’s EHCP and whether there was good reason for delay. In response, the Council said that “…there is currently no procedure for formally recording case notes. There are no informal case notes held for this case”. The Council says that this approach is under review.
26. As is set out above, the Ombudsman says that the keeping of records is fundamental to good administration. Therefore, I find that the failure to hold proper records is also fault.

Injustice

27. The failure to complete the EHCP process for 55 weeks was clearly frustrating for Mr and Mrs C. Mr C says that the delay also caused X injustice because he did not receive the education set out in the EHCP until it was completed.
28. Mr C says he paid for education for X before he attended pre-school in 2020 and he made significant progress. However, he says, because the EHCP was not in place, X regressed. He says the Council should reimburse this cost. He also says that Mrs C has become depressed by the Council’s failures and X’s regression.
29. The Council says, on the other hand, that, before his EHCP was complete, X “…had a structured, personalised learning plan … 1:1 support from trained and experienced staff and direct and targeted intervention from a speech and language therapist…. The school implemented specialist strategies…. [with] advice from the specialist advisory team”.
30. The Council says that the EHCP “…incorporates all of the provision he was already receiving and does not specify any additional provision”.
31. I have looked at information provided by the Council. In particular, at internal emails from November 2020 which show that Mr C believed that the placement at the school was breaking down due to a lack of funding. However, an email from the school said, “…regardless of funding, [X] has been supported with a 1:1 learning support assistant from the very first day. At no point has it been mentioned to [Mr C] about funding-based provision”.
32. Therefore, I cannot say that X was disadvantaged by the delay in the provision of the EHCP. However, it is clear that Mr and Mrs C believed that he was and so were caused considerable distress. As the delay went on, it is understandable that the distress would have become greater.

Remedy

33. The Council has said that it is aware already that the performance of its special educational needs education department is inadequate. It says it was inspected by OFSTED and the Care Quality Commission in December 2021 and is working with the Department for Education to improve its service. I do not, therefore, intend to recommend any system improvements in this case.
34. The Ombudsman’s guidance on remedies says we can award payments for distress. The guidance says that payments should usually be between £100 and £300 unless there are reasons to exceed this amount. In this case, I have decided that a payment of £600 to remedy the distress caused to the family would be appropriate because of the length of the delay in providing the final EHCP which meant that the distress went on for an extended period.

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Agreed action

35. The Council has agreed that, within four weeks of the date of this decision, it will write to Mr C apologising for the delay and the distress caused and pay him £600.

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Final decision

36. I have found the Council was at fault and have closed my investigation.

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Parts of the complaint that I did not investigate

37. The courts have established that if someone has lodged an appeal to the Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. For that reason, I have not investigated any of the events which occurred after the issue of the final EHCP which Mr C appealed to the Tribunal.

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Investigator's decision on behalf of the Ombudsman