The Ombudsman's final decision:
Summary: The Council delayed issuing an EHC Plan for Mr C’s daughter. The Council has agreed to make a financial payment to remedy the injustice this caused Mr C and his daughter.
- The complainant, whom I shall refer to as Mr C, complains that the Council failed to issue his daughters Education Health and Care (EHC) Plan on time. Mr C says the issue means his daughter has missed out on her SEN provision and has caused him distress.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) , 26A(1), and 34(3), as amended)
- 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)
- There are some limits on the Ombudsman’s jurisdiction. 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. If the person has appealed we have no discretion and cannot investigate. (Local Government Act 1974, section 26(6)(a), as amended)
- If someone has lodged an appeal to a tribunal the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman)  EWCA Civ 1407)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- 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)
- 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.
How I considered this complaint
- I considered the information Mr C provided and communicated with him about his complaint. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on Education Health and Care assessments and Plans.
- I also sent a draft version of this decision to both Mr C and the Council and invited their comments.
What I found
Guidance & legislation
Education Health & Care Plans
- A child with special educational needs (SEN) 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
- Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) 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. It 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 point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
- Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
- the child's education placement
- medical advice and information from health care professionals involved with the child
- psychological advice and information from and 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.
- 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.
- If a council decides not to contest an appeal against a decision to assess, it must carry out that assessment within 4 weeks of notifying the tribunal of its decision.
- Mr C has a daughter, D, who attends primary school.
- In May 2019, Mr C asked the Council to carry out an EHC assessment of D. It wrote to him within explaining that it did not consider that an assessment was required. Mr C appealed this decision to SEND.
- On 1 August, after receiving additional evidence, the Council made the decision that it would carry out an assessment. It wrote to Mr C to inform him of this decision.
- On 11 September, the Council contacted SEND to say that it would not contest Mr C’s appeal. Send subsequently wrote to the Council stating it must comply with the statutory timescales, which start one day after it informed the tribunal it would not be contesting the appeal.
- The Council started the assessment and scheduled an assessment visit of 7 October. However, this postponed after an assessment from an Educational Psychologist had been delayed.
- The report from the Educational Psychologist was received on 25 October. Mr C subsequently contacted the Council and said that, because the report had identified that D had significant verbal comprehension and reasoning difficulties, a Speech and Language Therapy (SaLT) assessment should also be carried out.
- A draft of D’s EHC Plan was issued on 7 November. Mr C was dissatisfied with the draft, stating that the requested SaLT assessment had not been completed. Mr C also said that the wording of D’s needs needed to be amended.
- Mr C met with D’s school and made the amendments to the wording of D’s needs in the draft.
- On 28 November, the Council contacted Mr C to inform him that a SaLT assessment would be carried out.
- In December, a co-production meeting was held, and as a result the draft EHC Plan was amended and reissued.
- The SaLT assessment took place on 17 January, and a third amended draft EHC Plan was issued on 14 February.
- In February, The Council offered Mr C a further co-production meeting however, he declined and instead asked for a final plan to be issued. A final EHC Plan was subsequently issued on 2 March.
- The Council received the request for an EHC assessment in May 2019 and issued the final EHC Plan following the Tribunal decision in March 2020. So, the whole process took over nine months. It is understandable, then, that Mr C feels it took too long for D to get the support she needs.
- However, the limits on the Ombudsman’s powers, referred to in paragraphs 4, 5 and 6 above, mean we cannot consider the whole of this period. I can only consider delay which happened outside of any periods during which Mrs C had or used a right of appeal.
- I have looked first at whether there was delay by the Council between the request for an EHC assessment and the decision refusing to assess. The Council responded to the request in the required timescale of six weeks. So, there was no delay at this point.
- Once the Council issued the decision, Mr C used his right of appeal. The Council reversed its decision and decided to carry out an assessment on 1 August 2019. But I cannot consider this period as the decision was under appeal.
- The whole process from the request for an assessment to the issue of the final EHC Plan should be completed in 20 weeks. However, if the Council decides not to assess and the parent appeals, as in this case, the period is broken. The clock stops when the Council makes the decision not to assess. The decision then stands until it is either overturned by a Tribunal or the Council reverses it.
- Where the Council changes its decision and agrees to assess, the Ombudsman takes the view that the period starts again at week six. The Council then has 14 weeks to complete the assessment and issue a final EHC Plan.
- In this case the Council changed its decision and agreed to carry out an assessment on 1 August. By my calculation it therefore had until 7 November 2019 to complete the assessment and issue the final EHC Plan.
- However, this deadline was not met. It seems initial delays were caused by a delay in receiving a report from the Educational Psychologist. However, a more substantial delay was caused by the delay in carrying out a SaLT assessment.
- It seems the need for the SaLT assessment arose from the contents of the report from the Educational Psychologist. Mr C contacted the Council, prior to the issuing of D’s first EHC Plan and requested an assessment take place. However, the Council did not arrange this and instead issued their draft.
- Upon receipt of the draft Mr C complained about the lack of an assessment and the Council subsequently agreed for the assessment to take place. However, it took a further 2 months for this to be completed, with a further draft being issued 1 month later.
- The delays in agreeing to and completing these assessments meant, the final EHC Plan was not issued until 2 March, some four months late. This is fault which led to a delay in D’s SEN provisions not being implemented.
- Where fault has resulted in a loss of educational or SEN provision, we normally recommend a remedy payment. Having considered the factors in this case I have concluded that a remedy payment should be offered at £250 for each month D’s provision was delayed.
- Mr C subsequently submitted a complaint about how the Council had dealt with D’s EHC assessment, which the Council responded to within the timeframes detailed in its complaints policy.
- I do not find fault in how the Council dealt with Mr C’s complaint. However, I do consider that in pursuing a final EHC Plan for D, Mr C also suffered undue stress in the form of inconvenience and frustration in his pursuit of a final EHC Plan for his daughter. It is for this reason that I also consider it appropriate for the Council to offer a payment of £150 to remedy the impact the delays had on Mr C.
- Within 1 month of the date of my final decision, the Council has agreed that it will
- Apologise to Mr C for the delays in completing D’s EHC Plan.
- Offer to pay £1000 to remedy the loss of SEN provision for 4 months due to these delays. This should be used for the benefit of D’s education.
- Offer to pay Mr C £150 to remedy the distress the delays had on him, in the form of inconvenience and frustration.
- I have concluded my investigation on the basis that there was fault which led to an injustice.
Investigator's decision on behalf of the Ombudsman