Summary: Mr X complained the Council wrongly refused to complete Education, Health and Care needs assessments for his two children. He said the Council upheld his complaint but has not yet paid him the financial remedy it offered. The Council was at fault. There was poor service and delay which caused Mr X frustration and distress. It has agreed to pay Mr X £300 to recognise the frustration and distress caused but also to recognise the further frustration caused by additional delay in completing the assessments after it upheld his complaint.

The complaint

1. Mr X complained the Council wrongly refused his request to complete an Education, Health and Care Plan needs assessment for his two children. He said the Council upheld his complaint and agreed to complete the assessments, but it has not yet paid him the financial remedy it offered as acknowledgement of the delays and distress caused. He wants the Council to explain the rationale for the decisions which led to his complaint, provide a suitable remedy, and review its procedures.

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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. 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)
4. 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

5. I read Mr X’s complaint and spoke with him about it on the phone.
6. I made enquiries of the Council and considered information it sent me.
7. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

8. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
9. The assessment process and timescales for EHC Plans are set out in the Special Educational Needs and Disabilities (SEND) Code of Practice. This is statutory guidance and councils must follow it.
10. The guidance sets out who has the right to ask a council to conduct an EHC needs assessment for a child or young person age 0-25. This includes the child’s parent, a young person over the age of 16 but under the age of 25, and a person acting on behalf of a school or post-16 institution.
11. Following a request for an EHC needs assessment, the council must determine whether an EHC needs assessment is necessary. It must make a decision and communicate this to the child’s parent or to the young person within six weeks of the request.

What happened

12. Mr X has two children, Y and Z. He does not live with his children but shares parental responsibility with the children’s mother.
13. In June 2019, Mr X asked the Council to complete an EHC needs assessment for Y and Z. He sent his request to a generic Council email address which the Council monitored daily. He attached copies of the children’s birth certificates as evidence he held parental responsibility and was therefore entitled to make the requests.
14. The Council did not respond. In August, Mr X re-submitted his requests to the same Council email address.
15. In October 2019, the Council’s safeguarding team contacted Mr X. It told him it had received his request for EHC needs assessments for his children. It said it was making enquiries with the children’s schools and would update him shortly.
16. A few days later, the safeguarding team wrote to him again. It said it had made enquiries but neither of his children’s schools identified any unmet special educational needs. Neither school felt Y or Z needed an EHC Plan. As a result, it said the Council would not be completing EHC needs assessments. It directed him back to his children’s schools if he was unhappy with the information provided.
17. Mr X complained to the Council. He said the Council needed to consult other health and education professionals before making a decision. He said it was not sufficient to rely on information from the children’s schools.
18. The Council responded to his complaint. It said:
• it had not processed his request because he used the wrong email address and did not send his request directly to the SEND service.
• The Council had a duty to complete an EHC needs assessment for a child when it received a request from a parent who lived in the Council area. It noted he did not live in the Council area.
19. It told him that should a person who held parental responsibility or his children’s school feel an EHC needs assessment was needed, they should get in touch with the SEN department.
20. Mr X responded to say:
• He sent his email to a Council email address. The Council should have forwarded it on to the correct team.
• It did not matter that he did not live within the Council area. He had parental responsibility and his children did live within the Council area, so as a parent, he had a right to request an assessment.
21. Mr X continued to correspond with the Council. He complained it was questioning his parental responsibility for Y and Z, despite him providing proof. He again asked the Council to complete the EHC needs assessments. The Council sent Mr X a further complaint response in December 2019. It said as neither the children’s mother nor their schools had identified a need, it would not be completing EHC needs assessments for the children.
22. Mr X remained unhappy and escalated his complaint to stage two of the Council’s complaints procedure.
23. In January 2020, the Council provided its final response. It upheld his complaint. It said it accepted he did have parental responsibility and was therefore entitled to request an EHC needs assessment for Y and Z. It said the SEND team would now consider the requests and he would receive the decisions by mid-February 2020. It apologised for any distress caused by the poor service and offered Mr X £200 compensation.
24. The Council did not provide Mr X with its decisions in February. He chased up the Council for two months. The Council wrote to him with the outcomes in April 2020.
25. In May 2020, the Council wrote to Mr X. It said it understood he had not yet received the remedy payment. It told him that to do this, it needed his bank account details and proof of account ownership. It told him how to send him this information. It said once Mr X sent the Council these details, it would arrange the payment.
26. Mr X told us he sent the Council his bank account details in July 2020 and asked the Council to either transfer the money into his account or send him a cheque. He told us that he has not yet received the payment.
27. In its response to our enquiries, the Council said Mr X had not yet provided his bank details and proof of account ownership, so the Council had been unable to process the remedy payment. It said it had taken action to ensure emails received in the Council’s generic account are appropriately forwarded to the right departments in future.

Analysis

28. The Council has upheld his complaint that there were errors in how it initially handled his requests. It said it should have recognised him as a parent with a right to request an EHC needs assessment for his children. It apologised for the delays and distress caused and offered him £200 in recognition of the service failures. This is an appropriate remedy for this part of the complaint.
29. In its final complaint response, the Council said it would now consider his requests and he would receive the decisions within two weeks. However, despite chasing it up, Mr X did not receive the decisions until 2 months later, in mid-April. That further delay was fault, causing Mr X further avoidable distress and frustration. I have recommended the Council increase its remedy payment in recognition of this.
30. Although Mr X says the Council has not paid him the remedy payment, it told Mr X it could not do this until he provided his bank details and proof of account ownership. I have seen evidence Mr X sent the Council his bank details in July 2020 but no evidence he provided proof of account ownership, so it could not arrange the payment. The Council is not at fault.
31. The Council has acted appropriately by working to improve its service and ensure emails received into generic email accounts are appropriately forwarded to the correct department.

Agreed action

32. Within one month of the final decision and dependent upon Mr X confirming his bank account details and providing the required proof of account ownership, the Council will pay Mr X £300 to recognise the avoidable frustration and distress caused by the poor service and delays.

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Final decision

33. I have completed my investigation. I have found fault and recommended action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman