Summary: Mr and Mrs X complained the Council delayed in issuing their child, Y, with an Education, Health and Care (EHC) Plan and failed to deal appropriately with their complaints. The Council was at fault when it took too long to issue Y’s final EHC Plan and failed to respond to their complaints appropriately. The Council should apologise and issue a financial payment to remedy the injustice its faults caused.

The complaint

1. Mr and Mrs X complained about the Council’s handling of an education, health and care (EHC) assessment for their child, Y, from May 2018 to November 2019. Mr and Mrs X complain the Council:
1. delayed completing the EHC assessment and production of the final EHC Plan;
2. failed to provide them with the content of the EHC Plan; and
3. failed to address their complaints appropriately.
2. Mr and Mrs X say the Council’s poor handling has impacted on Y’s ability to access education and caused them frustration and distress.
3. Mr and Mrs X also complained about the following matters which I have not investigated. I explain why at the end of this decision statement:
1. failed to ensure the EHC Plan was sufficiently comprehensive;
2. failed to consider transition planning for post-16 provision;
3. failed to ensure the support described in Y’s EHC Plan was provided by the school for the period March to November 2019; and
4. failed to arrange a suitable education for Y after she had been absent from school for the period March to September 2020.

Back to top

The Ombudsman’s role and powers

4. 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. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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)
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)

Back to top

How I considered this complaint

8. We spoke to Mrs X and considered the information she and Mr X provided.
9. We considered the information the Council provided.
10. I considered the comments made by Mr and Mrs X and the Council before making a final decision.
11. 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

What I found

Education, Health and Care Plan (EHC Plan)

12. A child with special educational needs (SEN) may have an 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 SEND Tribunal can do this.
13. Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment, or they disagree with the special education provision or the school named in the child’s EHC Plan.
14. If an EHC Plan assessment is requested, councils must issue the parents with a decision notice within six weeks of receiving the request stating if it will carry out an assessment. If the council decides an assessment is not necessary, it must provide reasons for this to the parent or young person and notify them of their right to appeal that decision with the SEND Tribunal.
15. Where the council agrees to complete an EHC needs assessment following an appeal, the maximum timescale for the council to issue the final EHC Plan is 14 weeks from the date of the decision.

Jurisdictional issues

16. Where a child has an EHC Plan, councils are under a duty to secure the special educational provision specified in that Plan. The Council also has an additional, general duty under section 19 of the Education Act 1996, which states "Each local education authority shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them."
17. Caselaw has established that where someone appeals to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that we can look at any lack of provision up to the date a person’s appeal rights are triggered. However, we cannot look at any lack of provision from the date the appeal rights were triggered to the date the SEND Tribunal reaches its decision.
18. Where a child is out of school for medical reasons connected to their special educational needs specified in their EHC Plan, we cannot look at whether the Council has met its duties under section 19 of the Act from the date the appeal rights were triggered.
19. The implications for Mr and Mrs X’s complaint are as follows:

11 March to 13 November 2019 – this is when Mr and Mrs X’s appeal rights arose following the issuing of Y’s EHC Plan to the date of the appeal hearing. During this period, we cannot look at what provision in her Plan was secured by the Council nor what education it secured under section 19 of the Education Act.

Council’s corporate complaints process

20. The Council’s complaint procedure has two stages. The Council says it will acknowledge complaints at both stages in five working days. It will respond to stage one complaints in 20 working days and stage two complaints in 25 working days. Where the stage two complaint is of a complex nature, the Council might extend the timescale for response to a maximum of 65 working days. The Council’s procedure also explains the circumstances where it may place its investigation into a complaint on hold. One of these circumstances is where the matter complained of is the subject of an ongoing tribunal appeal.

What happened

21. Mr and Mrs X’s child, Y, has special educational needs. Y used to attend a mainstream school, School Z.
22. The Council received a request from Mr and Mrs X to assess Y for EHC needs on 21 May 2018. The Council’s EHC Needs Assessment Panel considered this and on 3 July 2018, it decided to refuse Mr and Mrs X’s request. The Council wrote to Mr and Mrs X on the same date to explain its reasons for refusal and provide details of how they could challenge the decision.
23. Mr and Mrs X asked the Panel to reconsider its decision, which it did on 12 July 2018. The Panel again decided Y did not need an EHC assessment. The Council wrote to Mr and Mrs X on 12 July 2018 with the Panel’s decision and informed them of their appeal rights to the SEND Tribunal.
24. Mr and Mrs X appealed the Council’s decision with the SEND Tribunal shortly afterwards. Prior to the hearing, the Council decided not to oppose Mr and Mrs X’s appeal. On 12 September 2018 the Council informed the SEND Tribunal it would start the assessment of Y’s EHC needs.
25. Mr and Mrs X requested the Council consult with a number of health professionals. The Council did so, giving each professional six weeks to provide their reports. Some professionals returned nil reports as it had been several years since they had seen Y. Mrs X sought further reports directly from professionals that had been working with Y.
26. In October 2018, while the Council was completing its first draft of Y’s EHC Plan, Mrs X asked it to provide copies of reports from the educational psychologist and two additional health professionals. The Council explained one of these professionals had advised they had not seen Y since 2015 and as a result had no comments. Mrs X had arranged Y’s assessment with the second professional and so a copy of their report had already been sent directly to her. The Council also explained that the educational psychologist had not added anything further to their updated report provided to the Council and Mrs X in early January 2018.
27. The Council issued the draft EHC Plan to Mr and Mrs X for their views on 18 January 2019. Mrs X sent her comments to the Council on 22 January. The Council agreed to meet with Mrs X and the meeting took place on 25 January. The Council sent Mr and Mrs X a second draft of the EHC Plan on 4 March for comments. Mrs X asked the Council for a further meeting. The Council declined and issued the final EHC Plan on 11 March. At this point Mr and Mrs X’s appeal rights to the SEND Tribunal arose again.
28. On 14 March, Mrs X complained to the Council. The Council responded on 12 April.
29. Mrs X was unhappy with the Council’s response and complained again on 12 April. On 25 April, the Council spoke with Mrs X. She told it she intended to submit an appeal to the SEND Tribunal about the content of Y’s EHC Plan. The Council emailed Mrs X to confirm its discussion about placing her stage two complaint on hold while the SEND Tribunal process was ongoing. The Council told Mrs X she could bring her complaint to us if she was unhappy with the Council’s approach.
30. Later in April, Mr and Mrs X appealed to the SEND Tribunal. Their appeal included significant amendments to the whole of the section specifying the special educational support in Y’s EHC Plan.
31. Towards the end of the SEND Tribunal process, Mrs X made a further complaint to the Council about the lack of support being provided by School Z to Y. The Council emailed Mrs X to explain it would add these concerns to her existing stage two complaint and would respond once it had received the SEND Tribunal’s consent order.
32. The SEND Tribunal issued its consent order in Y’s case on 13 November 2019. In November, Mrs X made two further complaints to the Council. In December, the Council agreed to add these to her original complaint. It said it would respond by mid-February 2020.
33. The Council failed to do so and Mrs X complained to the Ombudsman. In response to our query, the Council stated our intervention and difficulties created by the COVID-19 pandemic prevented it from completing its stage two complaint investigation and response in Mrs X’s case.

My findings

Timescales for the EHC assessment and issuing of Y’s final EHC Plan

34. Th law states councils must issue a decision notice within six weeks of a request for an EHC assessment.
35. The Council received the request on 21 May and it issued its decision six weeks later on 3 July. There was no fault in the Council’s actions.
36. The Council reconsidered its decision to assess Y and began the process on 12 September 2018.
37. During the process, the Council told Mrs X she had 15 days to provide further comments on the draft EHC Plan. This meant the Council should have given Mrs X until 19 March to provide her views. The Council instead issued the final EHC Plan on 11 March. The Council’s failure to allow the full 15 days is fault. However, this did not cause Mrs X an injustice because issuing the final EHC Plan triggered Mrs X’s appeal rights to the SEND Tribunal. This was the most appropriate forum for considering any outstanding concerns she had about the content of Y’s final EHC Plan.
38. The Council issued Y’s final EHC Plan around 26 weeks after it agreed to assess Y. This is approximately 12 weeks longer than the law allows and is fault.
39. The delays in issuing Y’s final EHC Plan caused frustration to Mr and Mrs X and in turn delayed access to her appeal rights. They are also left with uncertainty over whether the provision ordered by the Tribunal might have been put in place earlier had the delays not occurred. The Council should make them a financial payment to remedy the injustice caused.

Failure to provide Mr and Mrs X with the professionals’ reports received by the Council during the EHC Plan process

40. In most cases, these reports were shared with Mr and Mrs X by the professionals directly. The form the Council used to request information from professionals included a specific section where the professional could indicate if they had shared their comments with the child’s parents or carers. The request forms we have seen in this case all state that the information within them had been shared with Y’s parents.

Complaints handling

41. There was no delay in the Council’s handling of Mr and Mrs X’s stage one complaint.
42. The Council acted in line with its complaints policy when it informed Mr and Mrs X it would defer the stage two complaint investigation whilst the SEND Tribunal considered their appeal. It said they could come to us if they were unhappy with that approach.
43. The Council should have sent its stage two complaint response to Mr and Mrs X by 17 February 2020 (65 working days from 13 November 2019). It was fault not to do so and no doubt added to Mr and Mrs X’s frustration. Mr and Mrs X were put to further time and trouble in chasing the Council for its response and then bringing their complaints to us to investigate. The Council should now remedy the injustice caused to Mr and Mrs X by its fault in this respect.

Back to top

Agreed actions

44. Within one month of the date of the final decision, the Council has agreed to:

• apologise to Y and Mr and Mrs X;
• pay £100 to Y Mr and Mrs X to remedy the frustration they were caused by the Council’s delay in issuing Y’s final EHC Plan; and
• pay £200 to remedy the frustration Mr and Mrs X were caused when the Council failed to respond to their complaints within the timescale specified in its procedure.

Back to top

Final decision

45. There was fault causing injustice. The Council has agreed to my recommendations. Therefore I have completed my investigation.

Back to top

Parts of the complaint that I did not investigate

46. I have not investigated the complaints in paragraph 3 for the following reasons:
• complaint 3a) – content of Y’s EHC Plan - the Ombudsman does not have the power to investigate or consider the contents of an EHC Plan; only the Council or SEND Tribunal can do that;
• complaint 3b) – planning for the transition to sixth form college – this is the subject of a separate complaint to the Ombudsman;
• complaint 3c) – failed to secure the support in Y’s EHC Plan from March to November 2019 – the law says the Ombudsman cannot look at missed provision for the period from when appeal rights arise to the Tribunal hearing which is the period Mrs X is complaining about. We also cannot investigate whether the Council secured provision for periods when Y was out of school during this period on the grounds of ill health; and
• complaint 3d) – failed to arrange a suitable education for Y after she had been absent from school for the period March to September 2020 – this is the subject of a separate complaint to the Ombudsman.

Back to top

Investigator's decision on behalf of the Ombudsman