Summary: Ms X complains the Council took too long to issue an Education Health and Care (EHC) Plan for her son, Z, and failed to assess his social care needs. She says this caused her family unnecessary stress. The Council assessed Z’s social care needs. But it delayed issuing his EHC Plan and took almost six months to complete a carer’s assessment for Ms X, though this recommended a different assessment, so we cannot yet say if the delay has caused injustice. It is also not yet clear if Z has missed any SEN provision

The complaint

1. The complainant, whom I shall call Ms X, complains the Council:

• Took too long to issue an Education Health and Care (EHC) Plan for her son, Z; and
• Failed to carry out an assessment of Z’s care needs or her needs as a carer.

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The Ombudsman’s role and powers

2. 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)
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. 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.

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How I considered this complaint

5. I read Ms X’s complaint and spoke to her on the telephone. I made written enquiries of the Council and considered the papers it sent me, including details of its policies and procedures. I considered the Special Education Needs Code of Practice 2015 (the Code). I shared a draft of this decision with both parties and invited their comments. I considered those I received.

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What I found

6. The Code lays out timescales for issuing an EHC Plan. Councils have six weeks to decide whether to assess a child. Where they do so, they have 20 weeks to issue the EHC Plan. There are circumstances where a council may take longer than this, such as where a parent requests extra time.
7. Ms X’s letter asking for an EHC Plan for Z bears the stamped date 30 January 2018. The Council’s letter refusing to assess Z dates from 4 April 2018. This was nine weeks after her request. I have seen no evidence Ms X delayed the Council’s decision. I therefore find the Council took three weeks too long to issue its decision.
8. Ms X approached the Council again in June 2018. It received her letter asking for an EHC Plan on 24 June 2018. It issued the final EHC Plan on 5 February 2019. During this period, Ms X asked for two weeks extra to respond. So, the Council took 28 weeks to issue the EHC Plan. This was eight weeks too long. The Council was responsible for six weeks of this delay.
9. The total delay by the Council was therefore nine weeks.
10. Although I do not find it affected the Council’s refusal to assess Z in April 2018, the Council’s policy on assessment fetters decision makers’ discretion. The policy states assessment only happens when a child “has not responded to relevant and purposeful action”. The policy goes on to list actions that must happen before assessment can begin. Some children’s needs and circumstances may be such that it will not be appropriate to require a specific set of actions before the Council assesses them. By omitting to state there may be exceptions, the Council’s policy fetters its discretion. This fettered discretion is fault.

Assessment of Z’s care needs and Ms X’s needs as a carer

11. The Council provided copies of three assessments of Z’s possible care needs. Two came close together in the summer of 2017, the third in March 2019. It also provided evidence of the actions it took between those dates. While Ms X finds the Council’s action inadequate, I cannot say the Council should have assessed Z in 2018. Its decisions were a matter for the professional judgement of the social worker involved.
12. Regarding Ms X’s carer’s assessment, I take a different view. This is because the Council decided on 18 March 2019, she needed a carer’s assessment. It would have been reasonable for the Council to complete this assessment in two months. But Ms X’s emails to me show she did not see the result until early September 2019. This was about four months too long. I find the Council at fault for the delay.
13. In response to the draft decision, Ms X tells me the Council has decided she does not have needs as a carer. She says it has decided she needs an assessment of her mental health. It is not for me to say if the Council’s view is right. However, Ms X is entitled to make a new complaint to the Council about the carer’s assessment.

Injustice

14. The delay by the Council in the EHC Plan issue process, totalling nine weeks, means Ms X has waited nine weeks longer than necessary to take her case to the SEND Tribunal. However, as the Tribunal has not yet sat, it is too early to know if the delay has caused Z to miss out on provision he would have had nine weeks earlier.
15. In the same way, the Council’s delay of about four months in completing the carer’s assessment means it is too early to know if Ms X has missed out on support she should have had. The Council is entitled to reach the view Ms X has no needs as a carer, but that she may have mental health needs. However, until the mental health assessment has been carried out, it is not possible to know if the delay of about four months will cause Ms X to receive assistance of whatever kind about four months later than she would otherwise have done.
16. Ms X is therefore welcome to return to us after the Tribunal hearing and when the Council has completed the carer’s assessment for us to consider the matter of potential injustice

Agreed action

17. I note the Council has completed the carer’s assessment as I recommended in the draft decision.
18. To prevent any potential injustice to service users in the future, the Council will add a caveat to its policy for SEN assessment. This should make it clear that there may be exceptions to its policy regarding applications for EHC assessments and that each case will be considered on its own merits. The Council has agreed to do this, but it has explained that it will need slightly longer than the one month period originally recommended before it appears in the document as this is currently in draft and is not due to be approved in time. It will supply me with a copy of the completed document. I will expect this within three months of the decision date.

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Final decision

19. I have upheld the complaint and closed the case as the Council has agreed to take the actions recommended.
20. Ms X is welcome to return to us when she has the result of the appeal to the SEND Tribunal and the result of the mental health assessment. This is because it will only then be possible to consider if she or X have missed out on assistance or educational provision in the two respective periods of delay by the Council. She should do so promptly after the later of the two outcomes unless there is a good reason that prevents her doing this.

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Investigator's decision on behalf of the Ombudsman