Summary: There was delay by the Council in issuing Mrs X’s son’s Education Health and Care Plan and poor communication with her. The Council has agreed to apologise and make a payment to recognise the loss of special needs support and Mrs X’s time and trouble in pursuing her complaint.

The complaint

1. Mrs X complained that:
1. there was unreasonable delay by the Council in issuing an Education Health and Care (EHC) Plan for her son; and
2. the Council's communication with her has been poor.
2. As a result she says her son has missed out on support he should have received and she has had to put a great deal of time and effort into trying to obtain an EHC Plan for him.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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

7. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on EHC assessments and Plans. I gave the Council and the complainant an opportunity to comment on my draft decision.
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.

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What I found

Education Health and Care Plans

9. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
10. Statutory guidance 'Special educational needs and disability Code of Practice: 0 to 25 years' 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. The guidance says:
• Where a local authority receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
• 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.
• The whole process from the date of the request until the final EHC Plan is issued must take no more than 20 weeks, unless certain exceptions apply.
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
• If the council decides not to issue an EHC Plan following an assessment it must write to the parents or the young person to tell them within 16 weeks of the date of the request for an assessment. It must give them 15 days to respond.
11. As part of the assessment councils must gather advice from relevant professionals. This includes:
• the child’s education placement
• medical advice and information from health care professionals involved with the child
• psychological advice and information from an Educational Psychologist (EP)
• social care advice and information
• advice and information from any person requested by the parent or young person, where the council considers it reasonable
• any other advice and information the council considers appropriate for a satisfactory assessment.
12. Those consulted have a maximum of six weeks to provide the advice.
13. There is a right of appeal to the SEND Tribunal against a decision not to assess, not to issue an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal.

What happened

14. Mrs X has a son, Y, who attends primary school, School 1. Y has a diagnosis of Autistic Spectrum Disorder and Pathological Demand Avoidance. He was receiving some support from the Occupational Therapy (OT) and Speech and Language Therapy (SALT) service.
15. Mrs X asked the Council for an EHC assessment for her son in January 2019. The Council received the request on 9 January. So the six-week deadline for the Council’s response was 20 February 2019. The 20-week deadline for issuing a final EHC Plan was 29 May 2019.
16. After receiving some professional reports and a supporting request from School 1, the Council made a decision on 30 January 2019 agreeing to carry out an assessment. The Council wrote to Mrs X with its decision on 8 February 2019. This is within the six-week deadline.
17. As part of the assessment the Council consulted the School and the following professionals on 8 February 2019, receiving a response on the dates below:
• OT – received 22 March 2019
• Educational Psychologist (EP) – received 21 March 2019
• Autism Outreach Service – received 1 May 2019
• Clinical Psychologist – received 30 April 2019 after the Council had to send an email as the psychologist did not receive the posted letter.
18. On 12 February 2019 Mrs X wrote to the Council to ask it to seek reports from these professionals as well as the SALT service, physiotherapy service and Consultant Paediatrician. The Council consulted the SALT service in mid-April.
19. Mrs X made a complaint to the Council on 18 April 2019. She said:
• the Council had not replied to her request for professional reports and she did not know what advice the Council was seeking
• the Council was likely to exceed the time limit for issuing a final EHC Plan as it had not yet issued a draft Plan.
20. The Council contacted Mrs X to say it would now ask for the further reports. It then approached the Consultant Paediatrician and the physiotherapy service in early May 2019.
21. On 1 May 2019 the Council says it decided it was not necessary to issue an EHC Plan. I have not seen any evidence that the Council told Mrs X about this decision or her right of appeal.
22. In mid-May the Council received some of the further reports it had asked for.
23. The Council replied to Mrs X’s complaint on 22 May. It apologised for the delay in the assessment process which it said was due to staffing problems. It said it was recruiting extra staff and reviewing its systems and procedures to ensure it met statutory timescales. The Council said it had now produced a draft EHC Plan which was being “quality checked”.
24. Mrs X contacted the Council to find out when it would send her the draft EHC Plan. She says the officer told her it was “sub-standard” and the Council would not be issuing it.
25. Mrs X made a further complaint on 24 May 2019 about the delay in issuing the EHC Plan and lack of response to her requests to have copies of the professional reports. She said there was only half a term left and it would soon become impossible for School 1 to recruit staff to support her son for the next academic year.
26. In early June there was a change of SEN caseworker allocated to the case. Also the Council decided it would issue an EHC Plan. It issued the draft EHC Plan on 12 June 2019.
27. Mrs X responded to the draft, disagreeing with the contents.
28. In early July 2019 the Council replied to Mrs X’s complaint apologising for its poor communication during the EHC assessment and offering to send her copies of the reports. It said part of the problem had been failings in the handover between one caseworker and another. It said it had introduced weekly staff training sessions to ensure similar problems would not occur again.
29. The Council issued the final EHC Plan on 9 July 2019, informing Mrs X of her right of appeal. Mrs X was not happy with the EHC Plan and there was further correspondence and discussion between her and the Council about it. She asked to go to mediation before deciding whether to appeal. In the course of these discussions the Council issued an amended draft EHC Plan on 26 September 2019. After considering Mrs X’s representations it issued a final EHC Plan on 11 October 2019, which Mrs X accepted.

Analysis – was there fault causing injustice

30. To comply with the statutory deadline the Council should have issued the final EHC Plan by 29 May 2019. It did not do so until 9 July 2019, a delay of around six weeks. The Council says the delays occurred because of the change of caseworker, the decision at first not to issue a Plan and then to reverse that decision, and excessive workloads. There is also evidence that the Council delayed in seeking some of the professional advice it needed to complete the assessment. Based on the evidence Mrs X has provided I also consider that the delay was in part due to a failure to ensure the draft EHC Plan was up to the required standard. This delay is fault.
31. The Ombudsman cannot consider the impact of any delay after the date of a final EHC Plan because at that point the parents have a right of appeal, unless it is not reasonable to expect them to use that right. The delay in issuing the final amended EHC Plan in October 2019 occurred because of the discussions about further amendments, the difficulty in arranging meetings over the school summer holidays and the process of considering mediation. I would not expect Mrs X to have appealed while these discussions were taking place. This is because of the prospect that they might result in a resolution without the need to go to Tribunal. However these discussions were beneficial to Mrs X. If she had decided to appeal it would have taken longer to resolve the matter. Also Mrs X says School 1 put in place most of the provision in the second draft EHC Plan from September 2019, which was eventually included in the final Plan in October. So I cannot say that if there was any fault by the Council after the date of the final EHC Plan in July 2019 this caused a significant injustice.
32. Nevertheless if the Council had issued the first final EHC Plan in time, the issues would have been resolved sooner and the second final EHC Plan would have been in place earlier. I can therefore consider whether Y lost out on support he should have had between 29 May and 9 July 2019.
33. My understanding is that Y continued to receive OT support, support from the Autism Outreach Service, and some help with SALT during the period of assessment.
34. The main new provision included in the final EHC Plan issued in October 2019 was:
• support to be available from a qualified Teaching Assistant for 25 hours per week, for help with gross motor skills, not necessarily 1:1 support; and
• small group work using a specific SALT programme delivered by a trained Teaching Assistant with advice and support from an external SALT therapist.
35. So Y missed out on some support for his special educational needs which in my view the Council should remedy.
36. Mrs X also experienced frustration because of the delays and lack of communication which resulted in her complaining to the Council and the Ombudsman.

Agreed action

37. The Council has agreed that to remedy the injustice caused, it will take the following steps within one month of the decision on this complaint:
• apologise to Mrs X for the faults identified;
• make a payment of £300 to recognise the loss of extra support for Y for the period 29 May to 9 July 2019;
• pay Mrs X £250 to recognise her frustration and time and trouble in pursuing her complaint.
38. These figures are based on the Ombudsman’s guidelines. The payment for loss of educational support should be used for the benefit of Y’s education.

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Final decision

39. I have found that the Council was at fault in the way it dealt with Y’s EHC Plan. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman