Summary: Mrs X complained about the Council’s delay in issuing an Education, Health and Care plan for her son and says he missed out on support as a result. She also complained the Council had failed to make reasonable adjustments for her dyslexia, which caused her frustration and added to the delays. The Council was at fault for a delay in issuing the plan and a failure to make reasonable adjustments in a timely way in view of Mrs X’s disabilities. The Council should apologise and make a payment to Mrs X for the injustice caused.

The complaint

1. Mrs X complains about the Council’s delay in issuing a final Education, Health and Care (EHC) plan for her son, S. She says this means S has lost out on educational support he would have been entitled to.
2. Mrs X also complains the Council has not made reasonable adjustments in light of her dyslexia, which has caused delay and frustration.

Back to top

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. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended). SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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)
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 the final decision with Ofsted.

Back to top

How I considered this complaint

9. I considered:
• the information provided by Mrs X and the Council;
• relevant law and guidance as set out below; and
• our guidance on remedies
10. Mrs X and the Council had an opportunity to consider two draft decisions and I considered their comments before making a final decision.

Back to top

What I found

Law and guidance

11. A child with special educational needs may have an Education, Health and Care (EHC) plan.
12. The purpose of an EHC plan is to make special educational provision for children with special educational needs and disabilities. Councils are responsible for deciding whether an EHC plan is needed and for preparing the EHC plan. The EHC plan should set out the specific support that is to be provided. It will usually name either a specific school or a type of school that can meet the child’s needs.
13. The statutory guidance says the EHC plan must be completed within 20 weeks of the request for an assessment.
14. If a council carries out a statutory assessment but decides not to issue an EHC plan, the parent has a right of appeal against this decision to the SEND tribunal. If the SEND tribunal orders the council to issue an EHC plan, the council should issue a draft EHC plan within five weeks of being told about the order.
15. If a parent is unhappy with the content of the EHC plan they can appeal to the Special Educational Needs and Disability (SEND) tribunal.

Equality Act 2010

16. The Equality Act says councils must take action to ensure the way they work does not place disabled people at a disadvantage. Where there are barriers to disabled people using a service, councils must consider making adjustments to the way they work. If a service user requests adjustments, and they are reasonable, they must be made.

Local SEND inspection

17. Council SEND services are subject to regular joint inspections by Ofsted and CQC (the Care Quality Commission). This Council was inspected in March 2018. The inspection identified two areas of significant weakness:
• the timeliness, process and quality of EHC plans; and
• the lack of an effective autism spectrum disorder (ASD) pathway and unreasonable waiting times.

An action plan was agreed in September 2018. This included a number of actions to increase the involvement of families, and to reduce the overall timescales for completing assessments and issuing plans. It was expected Ofsted/CQC would re-visit by April 2020 but it is likely this was delayed by the covid-19 pandemic.

What happened

18. Mrs X asked for an Education, Health and Care (EHC) plan for her son, S, in September 2017. The Council told Mrs X in late October 2017 that it had agreed to carry out a statutory assessment. It contacted relevant professionals to start the process of gathering evidence for the assessment.
19. The Council should have issued an EHC plan by early February 2018, which was 20 weeks after Mrs X made the request. However, there were a number of health assessments that had not been completed at that point. Mrs X agreed to extend the timeframe for the assessment to ensure that all relevant information could be included. In May she provided further reports to show difficulties S had as he progressed through school and asked for them to be considered as part of the assessment.
20. The Council’s panel considered all the reports that had been received by mid June. At least one report, a speech and language assessment report, missed the deadline to be considered by the panel. The Council decided not to issue an EHC plan because it said S’s needs could be met through his school’s SEND support plan. Also, in June 2018, the CPP was ended. The support plan was updated in early July 2018 to reflect the additional information available from the statutory assessment.
21. Mrs X was unhappy with the decision not to issue an EHC plan. She appealed to the SEND tribunal. In late January 2019, the SEND tribunal ordered the Council to issue an EHC plan.
22. Around the time the order was made, the Council met with Mrs X and S’s school to discuss the SEND support plan and his school placement. At that meeting it was agreed the Council would request some fresh assessments, including an occupational therapy (OT) assessment. Mrs X said the OT used the wrong date of birth, which meant the assessment was incorrect so another assessment was needed, adding to the delay in issuing an EHC plan. She said if the Council had shared the report with her straightaway the error would have been identified sooner.
23. Following the meeting, it was also agreed S would move to a new school. He started at Mrs X’s preferred school, an independent school, in late February 2019, initially on a trial basis. In mid March, Mrs X said she wanted S to remain at the new school permanently. She asked the Council to name the school in the EHC plan and provide transport between home and school.
24. Mrs X says there was a six week period where she had to drive S to school, which she says took over four hours each day, before the Council arranged transport. I have seen an email from the school in response to an initial refusal to provide transport. I understand the Council’s position was that the transport could be shared, which Mrs X was not happy with. I understand the Council subsequently paid Mrs X a mileage rate for the travel prior to school transport being arranged. Mrs X says she would not have had to drive S to school for 6 weeks if the new school had been named in the plan and the plan had been issued without delay.
25. In late November 2019 Mrs X complained to us because the Council had failed to issue a draft EHC plan, as ordered to do by the SEND Tribunal. In late December, officer 1, the Council’s newly appointed Locality Manager, contacted Mrs X to introduce himself and confirm he would have management oversight of the case going forward.
26. In late January 2020, the Council issued a template for the EHC plan. Mrs X complained in February 2019 that the amendments agreed at a meeting in May or June 2019 had not been made. It is not clear which meeting she was referring to and the Council was not able to find a record of a meeting agreeing amendments. It was possibly the annual review, which was held in June 2019 but, despite at least two requests, the school did not provide a record of the meeting. The Council suggested a meeting with Mrs X to go through the changes she wanted making but she declined. She said she wanted an amended document sending to her at least two weeks before a meeting or it would not be worthwhile.
27. Mrs X also said, when the Council sent the template to her in late January 2020, that she could not read Section K because the sections were not aligned. This meant the date, professional’s name and type of report were not all on the same line. She said she could not access the information due to her dyslexia and asked for it to be reformatted. A reformatted section K was not sent to her until June 2020.
28. Mrs X also complained that not all relevant reports were included in Section K but it was not clear which she felt were missing and this had not been resolved when Mrs X asked the Council to issue a final EHC plan in late March 2020. Mrs X is particularly unhappy that a key element of the CPP was to ensure all S’s needs were set out in one document, so everyone understood what his needs were and what support he needed. She feels the CPP caused considerable stress for the family but did not achieve anything because the additional reports requested were not all included in the EHC plan.
29. In early March 2020, the Council responded to her complaint about the delay in issuing an EHC plan, which we referred to it in January 2020. It apologised for the delay and said it was committed to ensuring a final EHC plan would be issued as soon as possible. It offered to pay her £200 “to remedy the injustice caused by the delays”. It issued a final EHC plan in early April 2020. Unfortunately, due to a change in provider it provided the wrong information about mediation and had to reissue the covering letter in mid May. In the event, Mrs X decided not to pursue mediation and lodged an appeal about the content of the EHC plan with the SEND Tribunal, which was registered in early July 2020.

Staff changes

30. Mrs X says there have been several changes of staff dealing with S’s EHC plan, which has meant she has had to repeatedly provide the same information. She says the Council’s system of assigning a key worker depending on the location of the children’s school has meant she has had two key workers to deal with throughout, which has caused her additional stress due to her dyslexia. She says there have been periods were there was no key worker assigned to S’s case.
31. The Council acknowledged Mrs X has had to correspond with a number of different officers in relation to S’s EHC plan. It says it has, during this period, invested significantly in the SEND team, which has been restructured and now has a stable workforce. It says S has always had a key worker and in addition Mrs X has had access to managers. She has also had a constant point of contact in its Customer Relations Team. From January 2020, the case has been overseen by the SEND Locality Manager. Mrs X disputes she has always had a named person to contact and says there have been periods where there was no key worker. In addition, she says she should not have to make complaints as a way to contact the SEND team to ask it to take action on the case.

Reasonable adjustments

32. Mrs X says she asked for various adjustments to be made because of her dyslexia and communication difficulties. She asked the Council to reformat Section K in the EHC plan because she could not read it due to the information not being aligned. She says this is the result of a difficulty with the software the Council uses and the Council has been aware of the problem issues this creates for her for over three years. Mrs X says she has asked for documents to be sent to her at least two weeks before any meetings to allow her extra time to read and assimilate the information in them. She also says she has asked for information to be sent by email (not secure email, which she struggles to access) with documents protected by a password or to be sent by post using a secure method, such as recorded delivery. She says the Council has not made these adjustments and she keeps having to remind it of her needs.
33. The Council provided details of a number of adjustments it has made in the way it communicates with Mrs X, including those mentioned above. It says it is willing to consider any further adjustments she may need. In response to my first draft decision, it said it had used secure post until March 2020 when its office was not accessible due to the COVID-19 pandemic. It resumed using secure post in August 2020.

My findings

34. Mrs X requested an EHC plan for S and the Council agreed to carry out a statutory assessment. It told her its decision within 6 weeks. It was not at fault.
35. A large number of assessments were requested in this case due to a need to understand all of S’s health and special educational needs. This was necessary to build a complete picture of the support S might need in school. In the circumstances, it was appropriate for the Council to obtain this information before completing the statutory assessment, even though it meant the assessment was not completed and a plan issued within 20 weeks. I note that Mrs X wanted to ensure all S’s needs were identified and provided for, and that she agreed to extend the time for completing the assessment. There was no significant injustice as a result of the additional time needed to June 2018 when the Council decided not to issue an EHC plan.
36. I cannot consider the period from the decision in June 2018, at which point Mrs X had a right of appeal, until January 2019, when the SEND Tribunal ordered the Council to issue an EHC plan for S. This is because the courts have said we cannot investigate action from the point the parent had appeal rights to the date of the Tribunal order.
37. The Council should have issued a draft EHC plan by 1 March 2019, which was five weeks after it was told about the Tribunal order. It did not do so. If it had issued the draft on that date, Mrs X would have had 15 days to comment on it and then the final EHC plan would be issued. Therefore, I consider the final EHC plan should have been issued by early April 2019. The Council was more proactive from January 2020 onwards but did not issue the final EHC plan until early April 2020. It was issued then because Mrs X asked the Council to issue a final EHC plan so she could go to mediation or appeal. This delay was fault.
38. The OT made an error in their assessment, which meant a further assessment was needed. Since the report was not shared with Mrs X straightaway, the error was not identified as quickly as it might otherwise have been, which contributed to the overall delay in issuing the final EHC plan. I have already made a finding about the delay and do not consider a further finding is needed.

Injustice caused by the delay in issuing a final EHC plan

39. Mrs X says the delays mean S has not had the support he should have had. I note that S had the benefit of a school SEND support plan throughout the period, which the Council kept under review. I also note that from February 2019 S attended an independent school, which the Council says has met his support needs. Mrs X has also said she is broadly satisfied with the support provided by the new school, although she says the lack of a plan meant that the Council and the new school tended to be reactive, responding to issues as they arose, rather than forward looking.
40. On balance, I am satisfied that S has received support for his special educational needs in the classroom. However, the delay in finalising the EHC plan did lead to a delay in S receiving the OT treatment sessions set out in the plan. Mrs X says this is now being provided and has made a significant difference for S. S has therefore suffered an injustice by having to wait for this support.
41. In addition, the delay has caused a considerable amount of frustration for Mrs X and the family, and that she has been put to additional time and trouble chasing the Council and providing information more than once.
42. Mrs X is not happy with the support set out in the final EHC plan and, in particular, that not all the reports obtained have been included in it. However, I cannot comment on this as this is now the subject of an appeal to the SEND tribunal.
43. Mrs X says but for the delays the new school would have been named on an EHC plan much earlier and this would have avoided the initial difficulty in securing home to school transport. I note that at the point the SEND Tribunal made its order there was no discussion about changing school, this was decided later; that S initially attended the new school on a trial basis; and Mrs X asked the Council to make this a permanent placement in mid March. On balance, I consider it was the change of school rather than the lack of an EHC plan that led to the issue with school transport. In any case, the Council did agree to provide transport and paid Mrs X a mileage allowance for the period in which she was driving S to school, which was appropriate.

Staff changes

44. The Council has acknowledged a number of changes of officer dealing with S’s case, which have undoubtedly contributed to the delay in issuing a final EHC plan. It has also added to Mrs X’s frustration as she felt she had to keep “starting again” with new officers. However, I consider this does not warrant a separate finding of fault. In addition, I am satisfied that Mrs X has always had someone she could contact about the case, although I appreciate she has not always had responses as quickly as she would like and should not have to making formal complaints because she does not have a named contact in the SEND team.

Reasonable adjustments

45. The Council told me it had properly considered whether to make the adjustments Mrs X asked for and made those adjustments it considered reasonable in the circumstances, including those Mrs X has since complained about. However, the reformatted Section K has not been provided, even though Mrs X had been asking for it, explaining why it was a necessary adjustment, having regard to her protected characteristic of disability from mid February 2020 onwards. The Council was already aware that there was a problem with its software and that Mrs X had asked for a reformatted version for her other child’s EHC plan. Therefore, I consider it should have provided this sooner.
46. I also note that the Council only agreed to the change from secure emails to emails with password protected documents recently, although it was aware Mrs X had difficulty access the secure email. The Council said it does send post securely but was not able to do so for a period during the COVID-19 pandemic.
47. The Council’s system of allocating key workers according to the location of their school, whilst sensible in most cases, has made it more difficult for Mrs X due to her communication difficulties. I note the Council has allocated a single key worker for both children in June 2020, although it did not tell her this until August 2020, but consider it should have made this adjustment sooner.
48. The Council has not been able to send Mrs X documents two weeks in advance of proposed meetings, which has led to some meetings being cancelled and contributed to the breakdown of the relationship between Mrs X and the SEND team. I acknowledge that the Council has not always understood what Mrs X wanted but consider it should have been more proactive in telephoning her to discuss issues rather than engaging in protracted correspondence.
49. On balance, although the Council has made reasonable adjustments in light of Mrs X’s disabilities, it has not always done so in a timely manner, and that was fault. This added to the delays and frustration caused to Mrs X.

Back to top

Agreed actions

50. The Council will, within one month of the date of the final decision:
• Apologise to Mrs X for the delay in issuing a final EHC plan for S, and for not making reasonable adjustments in a timely way in light of her disability;
• Pay Mrs X £500 for the frustration caused, and the additional time and trouble she was put to; and
• Pay Mrs X £100, for the benefit of S, to remedy the injustice to him caused by the delay in receiving the OT treatment sessions set out in the EHC plan;

I am aware the Council has already paid Mrs X £200 for the delay and this can be offset against the sum recommended so it only needs to pay a further £400, including the payment for S.

51. The Council will, within three months of the date of the final decision, review its processes to ensure:
• staff understand the importance of considering whether adjustments to the way it communicates with service users are needed to meet its obligations under the Equality Act 2010; and
• ensure that reasonable adjustments agreed are properly recorded so all relevant staff are aware of them.

Back to top

Final decision

52. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.
53. 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.

Back to top

Investigator's decision on behalf of the Ombudsman