Summary: Ms X complained the Council delayed completing her son’s Education, Health and Care assessment. The Ombudsman cannot assess the full impact of the delay or recommend a remedy until an Education, Health and Care plan is agreed. Ms X’s complaint can be re-opened when the outcome is known.

The complaint

1. The complainant, who I shall refer to as Ms X, complained the Council delayed completing her son’s Education Health and Care assessment. As a result, Ms X’s son has been out of school for over a year.

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The Ombudsman’s role and powers

2. 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)
3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

4. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Children and Families Act 2014.
• The Special Educational Needs and Disability Regulations 2014.
• The Special Educational Needs and Disability Code of Practice: 0 to 25 years 2015 ("The Code").
• The Council’s EHC Plan Assessment Process.
5. Ms X and the Council both had an opportunity to comment on a draft of this decision.

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What I found

6. A child with special educational needs (SEN) may have an Education, Health and Care Plan (EHC Plan). The EHC Plan sets out the child’s needs and what arrangements should be made to meet them. The Council deals with requests from parents for an EHC Plan for their child and is responsible for carrying out an assessment and putting an EHC Plan in place.
7. A council must first undertake professional assessments. To do this, the council must seek advice from the child’s parents, the school, an identified health care professional, an educational psychologist, social care, anyone else the council considers appropriate and from any person the child's parent reasonably requests.
8. If a council refuses to carry out an assessment, the decision can be appealed to the Special Educational Needs and Disability (SEND) tribunal (the tribunal). Where a council does not oppose the appeal, it will inform the tribunal and must carry out an assessment. The council must then inform the parent or young person of its decision on whether to issue an EHC plan within 10 weeks of the date it notified the tribunal. If the council decides to issue a plan, it must be finalised within 14 weeks of the date it notified the tribunal (SEND Regulation 45(3)).
9. The Ombudsman cannot look at complaints about what is in the EHC Plan but can look at other matters, such as a failure to provide the agreed support or where there have been delays in the process.

What happened

10. Ms X’s son, who I shall refer to as Y, has communication problems and medical needs. This resulted in poor school attendance. Ms X took Y out of school because she did not think the school met his needs.
11. The Council told me Y attended school for a term in September 2017 before Ms X decided to home school him. The school put a plan in place to improve Y’s attendance by October half term, but Ms X preferred to keep Y out of school.
12. Ms X told me Y started school in reception class and she took the decision to take him out of school in January of that school year. Y had bowel problems and the school could not look after him full time.
13. Ms X asked the Council to carry out an EHC assessment for Y on 17 May 2018. She expressed concern about Y’s learning disabilities and autism. Ms X said Y needs constant supervision, is unaware of risks, won’t eat on his own, has delayed speech and wears a nappy due to a bowel condition.
14. The Council acknowledged Ms X’s request on 22 May 2018. It said it must seek information from the school and relevant professional before confirming its by 1 July 2018.
15. The Council wrote to Ms X on 19 June 2018 refusing to carry out an assessment. It acknowledged Y has autism spectrum condition, with difficulty communicating and interacting. However, it did not consider there was enough evidence to show a need to assess Y. The Council noted Y’s absence from school. It said it was not clear whether Y’s difficulties were a result of absence or SEN. The Council said the school must provide 10 hours support from a teaching assistant and an EHC plan is only needed if a child needs more support than this. It said there was no evidence Y needed more support.
16. Ms X made another request for an EHC assessment in September 2018. The Council acknowledged the request on 26 September 2018.
17. The Council again refused to assess Y. It wrote to Ms X on 17 October 2018 and gave the same reasons as at paragraph 14 above. Ms X appealed the Council’s decision to the tribunal.
18. The Council’s SEN tribunal team emailed the Council’s home education coordinator on 30 October 2018 to confirm Ms X’s appeal. The home education coordinator replied, confirming they had visited Y and felt the Council should carry out an assessment.
19. The Council told Ms X on 3 December 2018 that it would assess Y. It asked Ms X to withdraw her appeal to the tribunal.
20. The Council told the tribunal on 11 December 2018 it had conceded the appeal.
21. The tribunal emailed Ms X on 13 December 2018. It said the Council conceded the appeal and must comply with SEND Regulation 45 timescales, which started on the day after the date the Council conceded the appeal.
22. Ms X contacted the Council on 16 January 2019 for an update. An internal Council email on 17 January 2019 asked its SEND team to log a new assessment.
23. The Council started Y’s assessment on 21 January 2019. It wrote to Ms X confirming it asked experts to provide advice, which was due by 28 February 2019.
24. The Council emailed Ms X on 16 May 2019 to tell her of a delay with Y’s psychological assessment. It said it would tell Ms X when it has a date for Y’s assessment.
25. When Ms X did not hear anything more, she complained to the Council about the delay providing an EHC assessment or plan.
26. The Council responded on 4 August 2019. It said it started Y’s assessment on 21 January 2019 but needed expert opinion. This was due by 28 February 2019 but there was a delay caused by staffing issues in the educational psychology service. It said this was made worse by absences. The Council could not say when the psychological assessment would take place. It upheld Ms X’s complaint and said it would prioritise assessments based on timescale and need.
27. Ms X brought her complaint to the Ombudsman on 22 October 2019. She said she was still waiting for the outcome of Y’s assessment, while Y was out of school and falling behind. She wanted an EHC plan so Y can go to a special school.

Response to my enquiries

28. The Council told me it will issue a draft EHC plan. The plan will specify 15 hours support for Y from a teaching assistant. His care can be met in a mainstream school. Ms X can state a preference for a different type of school.

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Analysis

29. I have set out the relevant timescales for completing the EHC assessment and plan at paragraphs 9 above.
30. The Council’s decision following Y’s assessment was due by 20 February 2019. This remains overdue; a delay of more than 12 months.
31. Any resulting EHC plan should have been finalised by 20 March 2019. However, the Council has not yet issued Y’s EHC plan and I do not know if it will be agreed by Ms X, so I cannot say how long the delay will be.
32. The Council has accepted it missed the deadline for completing Y’s EHC assessment. It says the delay was the result of a backlog caused by staff shortage and absence. This is not an acceptable reason for the delay, nor is it an exemption allowed under the Special Educational Needs and Disability Regulations 2014.
33. I have considered whether the delay completing the EHC assessment has caused injustice to Miss X and her son, Y. We have published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if fault by the Council had not occurred. Where this is not possible, we may recommend the Council makes a financial payment.
34. The Ombudsman cannot assess the full impact of the delay, or recommend a remedy, until the EHC plan is agreed and finalised. This is because we do not know what specific needs have been identified for Y or how any support will be delivered. It is not known if Ms X will agree to the plan. Until then we cannot work out what provision Y has missed out on due to the delay.

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Final decision

35. I have discontinued my investigation. The Ombudsman cannot assess the impact of the delay or recommend a remedy until an Education, Health and Care plan is agreed. Ms X’s complaint can be re-opened when the outcome is known.

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Investigator's decision on behalf of the Ombudsman