Summary: Mrs X complains about the way the Council handled assessing her grandson for an Education, Health and Care (EHC) plan, the Council’s provision of education, and delays handling her complaint. She says this meant her grandson missed out on education, and caused stress and anxiety to him and the wider family. The Ombudsman finds the Council at fault for the delays in the EHC process and for poor communication with the family. The Council will apologise and make a payment to Mrs X to reflect the injustice caused.

The complaint

1. The complainant, who I refer to here as Mrs X, complains on behalf of her daughter, Mrs O. Mrs X complains that the Council:
1. failed to provide a suitable education for Mrs O’s son, B;
2. delayed completing an Education, Health and Care needs assessment for B, and delayed issuing his Education, Health and Care plan;
3. failed to prioritise their application for an Education, Health and Care plan as promised;
4. failed to communicate with them and keep them updated; and,
5. delayed dealing with their complaint.
2. Mrs X says this caused stress and anxiety to B, who has missed out on education, as well as the wider family. She says it has meant B has been isolated from his peers.

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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 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, section 34(3), 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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
7. 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

8. Mrs O has given written consent for Mrs X to represent this complaint on her behalf. I consider that Mrs X is a suitable person to represent this complaint on Mrs O’s behalf.
9. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about the complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
10. I considered the relevant legislation and statutory guidance, set out below. I have also considered Ofsted’s report about the Council, inspected in March 2020. This report is available online.

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What I found

What should have happened

Providing an education

11. The Education Act 1996 (Section 19) says that education authorities (councils) must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
12. The courts have said that it is for a council to determine what is ‘suitable education’.

Education, Health and Care plans

13. Under the Children and Families Act 2014, when an Education, Health and Care needs assessment is completed by a council and it shows a need for special educational provision, the local authority must prepare and maintain an Education, Health and Care (EHC) plan.
14. The government issued the Special Educational Needs and Disability Regulations (‘the Regulations’) in 2014 and the Special Educational Needs and Disability Code of Practice (‘the Code’) in January 2015. The Code provides statutory guidance on the law and the Regulations.
15. If a council decides to complete an EHC needs assessment, it must do so according to the correct procedure and within the fixed timescales set out in law and detailed in the Code.
16. The Code says the whole process of EHC needs assessment and EHC plan development, from the date an assessment is requested to the final EHC plan being issued, must take no more than 20 weeks.

What happened: a summary

17. In January 2019, Mrs O asked the Council for an Education, Health and Care (EHC) needs assessment for her son, B. The Council acknowledged this request in April.
18. In July, Mrs O chased the Council because she had not heard anything about the EHC needs assessment. The Council apologised for the delay.
19. In September, the Council asked B’s mainstream school what educational provision and support was in place for him. The school said B had a reduced timetable because he had significant difficulties with attention and concentration. The school was providing B with an average of nine hours per week in maths, science and English.
20. In November, Mrs X complained to the Council about the delays.
21. The Council replied in December. It acknowledged that there was a delay in assessing B’s EHC needs. It said it had not been able to meet the statutory timescale because of a large backlog, which also affected its Educational Psychology service.
22. The Council said it had asked its Educational Psychology service to prioritise B’s case. It said it would get a draft EHC plan to the family as soon as possible.
23. In February 2020, the Council received B’s Educational Psychology report.
24. The Council issued B’s final EHC plan in June 2020. This said that the most suitable school for B is a special school.

Analysis

Suitable education

25. Mrs X complains that the Council failed to provide a suitable education for Mrs O’s son, B (part a of the complaint).
26. The Council says that the Education, Health and Care (EHC) needs assessment process was to consider what education was suitable for B. The Council says all parties agreed that fulltime education was not suitable for B, so his mainstream school provided part-time education while the Council assessed B’s EHC needs.
27. The Council acknowledges that Mrs O was not happy with this reduction in B’s education.
28. As I have said above, councils must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise.
29. I find that B was not absent from school, so the Council did not have a statutory duty to provide him with an alternative education. In any event, I find that the amount of hours B received in education at the mainstream school was more than B would likely have received in alternative education.
30. The courts have said that it is for a council to determine what is ‘suitable education’. It seems clear that the Council found the school’s part-time education for B was suitable while it assessed B’s EHC needs.
31. While I do not find the Council at fault for failing to provide a suitable education, it is clear that the delays in assessing B’s EHC needs and completing his EHC plan denied him a place at a more suitable school. I will come on to this next.
32. I note that the Council has agreed to put B back an academic year due to the amount of education he missed.

Delays

33. Mrs X complains that the Council delayed completing an Education, Health and Care (EHC) needs assessment for B, and delayed issuing his Education, Health and Care (EHC) plan (part b of the complaint).
34. As I have said above, the guidance says the whole process of EHC needs assessment and EHC plan development, from the date an assessment is requested to the final EHC plan being issued, must take no more than 20 weeks.
35. Mrs O requested an EHC needs assessment in January 2019. The Council issued the final EHC plan in June 2020. In total, the process took just over 71 weeks, which is 51 weeks longer than it should have taken.
36. In the Council’s complaint response, it accepted it had not met the statutory timeframes and that there had been delays.
37. I find that these delays are fault, and the fault caused Mrs X, Mrs O and B injustice. I find that if the Council had completed the EHC process within the 20 weeks, B would likely have had a place at the special school a year earlier. Ultimately, I find that the delays denied B a place at a suitable school.
38. This caused Mrs X and Mrs O injustice because of the significant length of time they had to wait, and the time and trouble they went to in chasing the Council and complaining.

Prioritising the application

39. Mrs X complains that the Council failed to prioritise their application for an Education, Health and Care (EHC) plan as promised (part c of the complaint).
40. In its complaint response (December 2019), the Council said it had asked its Educational Psychology service to prioritise B’s case.
41. B’s case was allocated to an Educational Psychologist in December 2019 and the report was completed in February 2020. I find that this is in line with the Council’s complaint response and appears to show that B’s case was prioritised by the Educational Psychology service. For this reason, I do not uphold this part of Mrs X’s complaint.
42. Mrs X says the Council ‘promised’ to prioritise B’s application for an EHC plan, in that there was “most definitely implied assurance” at each stage that the Council had matters in hand which were being dealt with expediently. I do not agree that the Council ‘promised’ this as such, but I agree that the Council implied it was taking action when there were still ongoing delays. I will address the failures in communication below (part d). As I have found above, the Council was clearly at fault for the significant delays in the EHC process.

Communication and updates

43. Mrs X complains that the Council failed to communicate with her and Mrs O and keep them updated (part d of the complaint).
44. The Council says that initially contact with Mrs O and Mrs X was limited due to limited capacity. It says that when the service increased its capacity, its communication increased.
45. I find that there has been a failure to communicate with Mrs O and Mrs X throughout the process and keep them updated. I accept, however, that communication has improved over time. This is an example of the failure to communicate:
46. Mrs O requested the EHC needs assessment in January 2019. The Council did not acknowledge this request until April 2019. Mrs O had to chase the Council in July 2019 because she had heard nothing further from the Council since April. This is poor.
47. I find this poor communication is fault. It caused injustice to Mrs O and Mrs X in that it caused uncertainty. I also find that it is likely to have contributed to a feeling of mistrust in the service.
48. Ofsted’s report noted that communication from the Special Educational Needs (SEN) team had been limited due to the capacity of the casework team. Ofsted found that despite the Council’s positive efforts, many parents still feel highly frustrated and find it difficult to get a timely response. This is clearly the case with Mrs O and Mrs X.

Complaint handling

49. Mrs X complains that the Council delayed dealing with her and Mrs O’s complaint (part e of the complaint).
50. Mrs X complained in November 2019. The Council sent its response on 12 December 2019. The Council says it should have responded to Mrs X’s complaint on 5 December, a week earlier.
51. I do not consider one week to be significant enough to constitute fault. For this reason, I do not uphold this part of Mrs X’s complaint.

Agreed action

52. Ofsted inspected the Council in March 2020. Ofsted’s report criticised the Council for “too many” EHC plans not being completed within the statutory timeframes. The report said that despite changes to improve efficiency, communication with parents about how the situation is being tackled has not been clear enough. The report said that as a result, many parents remain angry and justifiably dissatisfied about how long they have had to wait. This is certainly the case here.
53. Ofsted noted that the Council has recruited more staff to deal with the backlog. I am satisfied that the Council has taken appropriate steps to reduce the backlog and to prevent any future delays.
54. However, I find that the injustice to Mrs X, Mrs O and B has not been remedied.
55. Within four weeks of this decision, the Council has agreed to apologise in writing to Mrs X, Mrs O and B for the injustice caused by the delays in assessing B’s EHC needs and completing his EHC plan (part a of the complaint), and for the uncertainty caused by the failures in communication (part d).
56. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £1600. This is made up as follows:
• £900: £100 per month for nine months, from June 2019 (when the final EHC plan should have been issued) to February 2020
• £200: £50 per month for four months from March 2020 to June 2020 (when the final EHC plan was issued) [due to the impact of COVID-19, I consider it appropriate for the Council to make a reduced payment per month for the delay during that period]
• £500 for Mrs X and Mrs O’s time and trouble
57. These amounts are in line with the Ombudsman’s published guidance on remedies.
58. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

59. I have completed my investigation. I uphold parts b and d of the complaint because there is fault causing injustice. The Council will take action to remedy the injustice.
60. I do not uphold parts a, c or e of the complaint. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman