Summary: There has been fault by the Council in that it has delayed in completing the complainant’s son’s Education, Health and Care Plan. This has caused avoidable distress and frustration and the complainant’s son has missed the opportunity to apply for a nursery place at the maintained special needs school which he will be attending from September 2020. The Council has agreed the recommended actions to remedy the personal injustice, and the procedural improvements, to prevent repetition of the faults found.

The complaint

1. The complainant, who I refer to as Ms X, complains that the Council has delayed in completing her son’s (Child B’s) Education, Health and Care (EHC) Plan. Child B is due to start at a maintained special needs primary school this September 2020. Child B has been diagnosed with extensive special educational needs (SEN).
2. Ms X requested a statutory assessment of Child B’s SEN needs in February 2019. She did not receive the final EHC Plan until 23 December 2019. Ms X identified an appropriate special school (School Z), close to home, for Child B. School Z also has a nursery, taking children with special educational needs from the age of 2 years.
3. Ms X requested a place for Child B at School Z. Ms X says that the Head of School Z told her that it had no places for Child B, starting in September 2020, but his name would be placed on its waiting list in date order. The Head explained that Child B needed an EHC Plan to be able to attend School Z.
4. In October 2019, the Council considered Ms X’s complaint and upheld some of her concerns. However, Ms X says that the delays continued after this and, therefore, she complained to the Ombudsman.
5. Ms X considers that, because of the Council’s delays in completing Child B’s EHC Plan, Child B may have missed out on a place at the nursery at School Z and she feared for some time that he might not have a place at School Z in September 2020.
6. Ms X also says that the Council’s delays have caused avoidable distress, frustration and uncertainty. She has also been anxious about whether Child B will receive the SEN provision he requires. Ms X considers she has had to go to enormous lengths to obtain for Child B what he requires for his extensive needs. She says that this has caused strain and had a negative impact on the family.

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The Ombudsman’s role and powers

7. 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. Parents can appeal to the Special Educational Needs and Disability (SEND) Tribunal if they consider the Plan is inadequate.
8. The Ombudsman cannot investigate a complaint if someone can appeal to a SEND Tribunal. The Ombudsman also cannot consider matters which have been appealed to SEND or which are ‘inextricably linked’ to matters which have been the subject of an appeal, even if the Tribunal has not provided a complete remedy for all the injustice claimed. (R v the Commissioner for Local Administration ex parte PH, 1999, R (on the application of ER) v the Commissioner for Local Administration, 2014, Local Government Act 1974, section 26(6)(a), as amended)
9. The Ombudsman cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this. We can consider delay or fault in the process of statutory assessment of an EHC Plan, before the final decision, where this can be separated from the matters subject to appeal. (Local Government Act 1974, section 26(6)(a), as amended)

10. 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)
11. 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

12. I have spoken to Ms X and obtained the Council’s written comments to the complaint and seen its previous complaint correspondence to Ms X.
13. While I appreciated that the Council had not had the opportunity to consider Ms X’s complaint about continued delay, after the Council had sent its complaint response to her in October 2019, we decided to exercise discretion to investigate this in addition to the earlier delay. This is because it is a continuation of the matters which Ms X has already alerted the Council to.
14. I sent a draft decision statement to the Council and to the complainant. I have taken account of their comments when reaching my final decision.

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What I found

Legal and administrative

EHC Plan process

15. The Children and Families Act 2014 sets out how councils and health authorities should assess and provide for children and young people’s special educational needs (SEN).
16. The Special Educational Needs Code of Practice 2015 (the Code) and the Special Educational Needs and Disabilities Regulations 2014 (‘Regulations’). contain detailed guidance about how councils should manage the assessment process.
17. Parents/schools can request a statutory assessment of a pupil’s possible SEN. The council has six weeks to decide whether a child requires a statutory needs assessment. If the council refuses this, a parent can appeal against this decision to the SEND tribunal. Before submitting an appeal, parents are required to use the mediation process to see if it is possible to resolve differences of opinion.
18. If the council decides to assess the child, it will gather information and then decide if the child needs an EHC Plan. A council will often ask appropriate professionals to provide advice about the child’s needs. This advice should be sent to the council within six weeks of the request.
19. If a council decides to issue a Plan, it should issue a draft Plan to the parents who then can request amendments to the Plan and request a particular school. On receipt of the parents’ requested amendments and school request, the council should consult school governing bodies as to whether the school can admit the pupil. Governing bodies have 15 calendar days to respond.
20. The Council must then issue a final EHC Plan. It must also notify the child’s parent of their right to appeal to the Tribunal, if they disagree with the named school placement or content of the Plan, and the time limit for doing so.
21. The Regulations require councils, subject to certain exemptions, to send the final EHC Plan within 20 weeks of receiving the school or parent’s request to conduct an assessment.
22. Section 9.83 of the SEND Code states that, once a school placement is named in the final Plan, the pupil must be admitted to that school.

The Council’s SEN procedures

23. The Council has a graduated approach to SEN, described as ‘Assess, Plan, Do and Review’. Once a request for a statutory assessment is received, this should be allocated to a SEN Officer. The Business Support Team sends out the required correspondence and notifications.
24. As a result of Ms X’s complaint to the Council, it changed its practices and now expects the SEN officer to contact the parent on receipt of a request for a statutory assessment. There should also be a named SEN officer on all correspondence. The Council has also introduced procedures to ensure decisions are made, before the statutory timescale, wherever possible.
25. The Council has also introduced training for its SEN officers and in July 2019, the Council introduced its Early Years SEND pathway. This sets out the different stages the Council will consider a young child’s possible SEN. The formal statutory process is considered as specialist provision.
26. The Council says that it allocates places at its maintained special schools. But these decisions are done in collaboration and partnership with the head and governing body of the schools. The date of the application to a special school is a consideration as part of the process. But it is not the only factor and the child’s needs, the distance to the school and whether the child is in care, or has been missing from education, are also considered.
27. If a child is already in a school, and there are no immediate places at the special school, their name will be placed on a waiting list.

Key facts

28. Child B was diagnosed as a young child with a genetic condition, significantly affecting his development. He is profoundly deaf and has gross motor developmental delay. He attended a nursery from April 2019 until the recent pandemic of March 2020. Ms X says that, while the nursery provided appropriate care, it was unfamiliar with dealing with a child who was deaf and had such extensive special needs. Therefore, it was not the ideal placement for Child B.
29. Ms X requested a statutory assessment of Child B’s SEN on 5 February 2019. She submitted medical evidence to support the request. The Council refused the request within the six weeks’ timeframe. Ms X says that this refusal was unlawful.
30. Ms X had a right of appeal to the SEND Tribunal and she used the initial mediation process. As a result, the Council agreed to start a statutory assessment, without Ms X having to appeal to the Tribunal.
31. Ms X says that she was told of the Council’s decision that it would assess Child B by the mediator on 3 April. But the Council did not tell her in writing until 25 April 2019. The Council has accepted that this delay was unacceptable.
32. The Council has also accepted that the communication with Ms X at this stage was inadequate and that this would have caused her avoidable distress and misunderstandings. The SEN process and the need for the Council to follow its graduated approach should have been explained to Ms X at the time. The Council says it needed to assess how the nursery was managing Child B’s needs and whether its strategies were helping Child B.
33. Once the Council agreed to assess Child B on 25 April 2019, it had 14 weeks to complete the process and issue a final EHC Plan. So, the final Plan should have been issued by 31 July 2019, but sooner if the Council had not delayed in informing Ms X that it would now be assessing Child B.
34. The Council has explained that the SEN officer dealing with Child B’s subsequent assessment was absent and there was, at this time, staff shortages. This has caused delays in issuing the draft and final EHC Plan. However, the Council accepts that it still had a duty, despite staff shortages, to ensure the Council adhered to the SEN statutory timescales.
35. The Council sought advice from an Educational Psychologist (EP), a Physiotherapist and from a Speech and Language Therapist. The latter two provided their advice in May and June 2019. The EP provided her advice in August 2019. Professional advice should be received within 6 weeks of the request.
36. The Council issued a draft EHC Plan on 2 October 2019. The Council says that it consulted School Z on 2 October 2019 and received its response on 5 November, outside the 15 day time limit. It consulted another special school on 25 November and received its response on 3 December 2019 within the required time. Ms X says that she had never expressed a preference for this school.
37. School Z is a special school for pupils aged 2-11 years. It caters for pupils with severe learning difficulties. The younger pupils are generally taught on a different site to the older pupils. Its Admission Policy of September 2018 says that places at School Z are agreed by the Council’s Assessment Panel in consultation with the Head of the school.
38. However, the Council has confirmed that there is now no Assessment Panel and the Council allocates places at special schools, taking account of parental preference. The Council says it will discuss this with School Z to ensure that it is aware of the new procedures.
39. On 23 December 2019, the Council issued the final EHC Plan. The Plan did not name a school, only the type of school required. Ms X had a right of appeal to the Tribunal at this point. Ms X pursued the mediation process, and in April 2020, the Council issued an amended final Plan, naming School Z. Therefore, Ms X did not have to appeal to the Tribunal.
40. School Z must admit Child B in September 2020 as it is the named placement on his Plan. School Z has agreed to do so.

Analysis

41. The Ombudsman cannot consider Ms X’s complaint about the Council’s initial refusal to assess in March 2019 because she had the right of appeal to the Tribunal on this decision. But I accept the Council’s complaint decision that it was fault to have delayed in telling Ms X of its decision to undertake a formal statutory assessment.
42. I consider the Council should have written to Ms X within one week of this decision, so by 10 April 2019. I will take this date as the beginning of the 14 week period which the Council had to issue a final EHC Plan.
43. I also consider that the Council should have consulted possible schools concurrently rather than consecutively. That might have prevented delay in finalising the Plan.
44. The Council took 23 weeks over the statutory 20 week time frame to issue the final Plan. That is fault by the Council and some of the delays could have been prevented as highlighted above

Injustice

45. Had the Council issued the final Plan in mid July 2019, as it should have done, Ms X says that she would have asked for a place at School Z’s nursery. Had this not been agreed, she would have had the opportunity to appeal and use the mediation process which had been successful in early 2020.
46. I cannot say that Child B would have obtained a place at the nursery at School Z, but for the delays. But there was a missed opportunity for him to do so.
47. Ms X also considers that, but for the Council’s delays, her request for a place in September 2020 at School Z would have been considered much sooner and she would have had the certainty of knowing that Child B would be placed there sooner. That would also have saved her and her family from avoidable distress.

Agreed action

48. Where there has been avoidable distress, the Ombudsman’s recommendation, to remedy such injustice, is symbolic and payments are normally between £300 to £1,000 depending on the severity of the injustice. I am satisfied that Ms X’s injustice merits a payment at the higher end.
49. To remedy this complaint, the Council has agreed the following actions to be carried out within two months of the date of the final statement;
1. to apologise to Ms X and pay £1000 to recognize the avoidable distress and possible missed opportunity for Child B to attend the special needs nursey at School Z. Ms X may wish to use part of this payment to purchase something which will further Child B’s development;
2. some of the delays on this case were caused by professional advice not being returned to the Council within the required six weeks. The Council has agreed to develop an action plan on how it can ensure such advice is received within the required timescale;
3. the Council’s SEN procedures will provide that officers consult possible schools concurrently and not consecutively;
4. the Council will write to its maintained special needs schools in its area reminding them of the need to provide a decision about whether it can admit a pupil within the required 15 days.

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Final decision

50. The Council has agreed to remedy the injustice caused by its faults and to improve its SEN procedures. I have therefore completed my investigation and I am closing the complaint.

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Parts of the complaint that I did not investigate

51. I have not investigated the Council’s decision to refuse the statutory assessment because Ms X had the right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman