Summary: Mrs X complained the Council delayed in completing an Education, Health and Care needs assessment for her son Y, and that it failed to issue a final Plan. The Council was at fault. That fault caused avoidable distress and frustration to Mrs X. The Council has agreed to pay Mrs X £250 to remedy the injustice caused and complete an action plan to support Y find suitable education. It has already made service improvements to prevent a recurrence of the fault.

The complaint

1. Mrs X complained about the Council’s Education, Health and Care (EHC) Plan assessment process. She said the Council failed to make a decision on whether to issue an EHC Plan for a year. It then failed to issue an EHC Plan within statutory timeframes. She said that had resulted in Y missing two years of education.

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The Ombudsman’s role and powers

2. 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)
3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
4. 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)
5. 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)
6. 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

7. I discussed the complaint with Mrs X and considered the Council’s complaint response.
8. I made enquiries of the Council and read Y’s case records.
9. I referred to the relevant legislation and statutory guidance.
10. Mrs X and the Council both had the opportunity to comment on the draft decision. I considered their comments before making my final decision.

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What I found

Education, Health and Care Plans

11. An EHC Plan is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
12. Once the Council receives a request for an EHC Plan, it must decide whether an assessment is needed within six weeks. It can only issue an EHC Plan after a child or young person has gone through the assessment. At the end of that assessment the Council must decide whether to issue a plan or not. The whole process from the point of request to the Council issuing the final EHC Plan must take no more than 20 weeks.
13. If the Council decides to issue a plan it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request but it should be able to explain why the EHC Plan meets the needs of the child.
14. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, whether to issue an EHC Plan or the content of the Plan. These are appealable to the Special Educational Needs and Disability Tribunal (SEND). SEND is a tribunal that considers special educational needs.

What happened

15. Y is a young adult. He struggles with social anxiety and completed his last year of compulsory education at a Pupil Referral Unit (PRU). The PRU asked the Council for an EHC Needs assessment for Y in April 2018 to support him in his move to post-16 education in the September.
16. The Council agreed to complete the assessment for Y. The case records show the Council asked for an Educational Psychologist’s assessment. They met with Y, his mother, the PRU and the college that Y wanted to start at in the September. The Educational Psychologist completed their report in August 2018.
17. Y started college in the September. The college sent the Council an email at the end of September stating that Y had withdrawn from college because he wanted to focus on his mental health needs.
18. The Council’s special educational need (SEN) Panel met in January 2019. At that meeting the Council decided not to issue an EHC Plan for Y. The Council did not write to Mrs X to tell her about that decision until April 2019. In that letter the Council said Y’s educational needs could be met through resources already available to post-16 education providers. The Council said it would allocate a post-16 worker to help Y with the next steps. It decided to issue an ‘additional needs plan’. It explained Mrs X and Y’s right to appeal.
19. Mrs X lodged an appeal and complained to the Council. She said she was unhappy with the length of time the Council had taken to make its decision about Y’s EHC Plan. She said the Council’s communication was poor, as was the quality of information and service provided.
20. In July 2019 the Council responded and fully upheld all of Mrs X’s complaint. It said it had struggled with reduced staffing and an increase in demand for its special educational need assessment services. That caused delays in the EHC needs assessment process. It agreed its communication had been poor and that it was reviewing the Council’s SEND service.
21. The Council accepted it had failed to communicate its decision following the SEN Panel with Mrs X. In addition, it said loss of staff and delays meant information provided during the assessment process was often incomplete or unclear. The Council offered to escalate the complaint to stage two if Mrs X was unhappy with its response.
22. In July 2019 the Council decided not to oppose Mrs X’s appeal and agreed to issue Y an EHC Plan. The Council sent a draft EHC Plan out to Mrs X and Y at the start of August. After discussion with the Council about the Plan, Mrs X returned it to the Council on 16 August and asked it to contact College A for a place for Y starting in the September.
23. About this time the Council sent Mrs X a response to her request for it to consider her complaint at stage two. It said there was not enough grounds to proceed to a formal investigation as the Council had fully upheld the complaint and given a formal apology. It said, “necessary actions have been put in place to ensure this situation does not repeat again”.
24. In September 2019, Mrs X brought her complaint to the Ombudsman. She said despite the Council’s investigation into her complaint its practice had not improved. She said the Council failed to consult with College A in time for Y to start in September.

The Council’s consultations with College A

25. At the start of September 2019, the Council’s records indicate it intended to send the EHC Plan to college A. However, it failed to send it. The Council telephoned College A at the start of October.
26. College A told the Council Y had enrolled at the college six weeks earlier. They said they had spoken to Mrs X at the end of September and explained it would take about six weeks to arrange the additional support Y needed. The College said that after speaking to Mrs X and meeting Y, it was concerned that Y would struggle with the course. It said that Mrs X had told them Y would be unable to attend college for full-days or a full week. The course was a fulltime course with a 150-day placement. College A said it had recommended other courses to Mrs X and suggested that Y reapply the following year.
27. In January 2020, the Council identified it had not issued Y a Final EHC Plan and that it had not had a formal response to its consultation with College A. It contacted College A, who provided a written formal response to the Council’s consultation in January 2020. It provided information about the additional courses suggested to Y.

The Council’s response to enquiries

28. The Council said the two alternative courses offered by College A were not suitable for Y because of distance from home and existing family commitments. The Council said Mrs X had asked it to consult with a different college which it had sent consultation papers to on 12 February 2020.
29. The Council recognised it delayed following up the consultation response with College A and said it was doing an internal review to identify what had happened.
30. The Council said it had made service improvements since September 2019 including:
• a restructure of its teams;
• creating a new post to oversee compliance, quality and casework management;
• developing a new team to monitor and challenge statutory compliance; and
• delivering on-going training for staff on statutory compliance.
31. In addition to the apology it had already made, the Council offered a symbolic payment of £250 to Mrs X.

My findings

32. The Council has already accepted it was at fault for delays in the EHC assessment process during 2018 and that its communication with Mrs X was poor. It took the Council one year from the PRU requesting an assessment to deciding not to issue an EHC plan. That was significantly longer than the 20 weeks allowed for the whole process. That caused Mrs X avoidable frustration and distress.
33. Mrs X believes the lack of EHC Plan meant that Y was not able to maintain his college placement. However, even if the Council had followed the statutory timeframes, it still may have decided not to issue an EHC Plan, and therefore there may not have been a Plan in place when he started college in the September 2018. I cannot say Y’s decision to withdraw from college was solely because of the Council’s delayed decision not to issue Y with an EHC Plan.
34. The Council has made significant changes to its SEN service in response to Mrs X’s complaint. That should prevent future recurrence of the fault.
35. The Council decided to issue an EHC Plan in July 2019, after Mrs X lodged an appeal with the tribunal. It sent the draft EHC Plan to Mrs X within statutory timeframes. However, the Council did not consult with College A until October 2019 about a place for Y. It was not until January 2020 that the Council identified it had not received a written formal response from College A. The delay in consulting with College A was fault. The Council has said it is completing an internal review into the delay in getting College A’s response. That will prevent a further recurrence of the fault.
36. That delay in consultation has caused Mrs X further avoidable frustration and resulted in her complaint to the Ombudsman. However, I can’t say the Council’s delay in consultation prevented Y from attending college A. The College’s response to the Council shows it had concerns about the suitability of the course for Y and had made recommendations for two alternative courses.
37. The Council has not yet issued Y’s final EHC Plan. That should have been completed by mid-October 2019. The Council said it has not finalised the EHC Plan because there is no named educational provider. The Council is at fault for not issuing the Plan within statutory timeframes. The Council can issue a final EHC Plan specifying the type of education provider that would meet Y’s needs as opposed to naming a specific college. The Council’s fault has caused Mrs X an injustice as it has delayed the right to appeal.
38. In response to enquiries the Council has offered Mrs X a financial remedy of £250. That remedies her for her time and trouble for having to complain after the Council failed to make a decision on Y’s EHC Plan within statutory timeframes, and for the avoidable frustration in its delay in consulting with College A.

Agreed action

39. Within one month of my final decision the Council has agreed to:
• Pay Mrs X £250 for the avoidable distress caused by delays in the statutory assessment process, poor communication and poor service.
• Provide feedback on its internal review as to why there was a delay in consulting with and following up College A’s consultation response.
• Complete an action plan to identify how it will support Y find a suitable college course and provide careers advice.

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Final decision

40. There was fault in the Council’s statutory assessment processes. The Council has agreed to my recommendations, therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman