Summary: Mrs X complains the Council delayed carrying out an Education, Health and Care (EHC) Needs Assessment and finalising the related EHC Plan for her son, B. The Ombudsman finds the Council at fault. The delays meant B missed out on certain educational provision. Mrs X incurred costs connected with the time and trouble she was put to chasing the Council. To remedy the injustice caused to Mrs X and B, the Council has agreed to apologise to them, and make a payment to reflect the injustice caused to Mrs X and B by the fault.

The complaint

1. Mrs X, on behalf of her son, B, complains the Council:
1. failed to assess fully and properly her son’s special educational needs as part of his Education, Health and Care (‘EHC’) needs assessment;
2. failed to issue her son’s draft and final EHC Plan within the statutory timescales set;
3. refused to reimburse her for the legal fees she paid to get advice about the Council’s delays in finalising B’s EHC Plan;
4. refused to reimburse her for the cost of expert reports; and
5. incorrectly said she had asked for a delay in arranging a meeting to discuss B’s draft EHC Plan.
2. Mrs X says B missed out on certain educational provision due to the delays. She says this has had a negative impact on his progress at school, and his mental and emotional wellbeing. Mrs X says B’s unmet needs led to him avoiding school, being physically restrained at school and self-harming. Mrs X says B’s self-esteem would not have deteriorated to the point where he refused to attend school if the Council had assessed his needs and put in place the educational provision he needed sooner. She says the impact on B is ongoing and this has affected his ability to transition to his new school.
3. Mrs X says she had to pay for specialist tuition for her son and in sourcing private assessments. She has experienced stress and distress due to the impact on her son, and has gone to time and trouble complaining to the Council. She says the stress and distress was especially unnecessary as she had recently gone through the same battle with her older son.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
9. 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

10. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on my draft decision. I have considered all their comments before making a final decision.
11. I have considered the relevant legislation and statutory guidance, set out below. I considered the Ombudsman’s focus report: ‘Not going to plan? – Education, Health and Care plans two years on’, published in October 2019. I also considered Ofsted and the Care Quality Commission’s joint report on this council, inspected in March 2020. This report is available online.

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What I found

What the law says

12. A child with special educational needs 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.
13. 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.
14. The Regulations say that a council must consult the child’s parent or the young person as soon as practicable after receiving a request for an EHC needs assessment. After this, the council must decide whether to carry out an EHC needs assessment within six weeks, and must notify the parent or young person it is considering doing so.
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. This includes a requirement to collect evidence from education, health and care professionals within a further six weeks from the decision to assess.
16. During the assessment process, councils must seek advice and information from certain people. The Regulations sets out the list of people to consult, which includes:

• the child’s parent or the young person;
• educational advice (usually from the head teacher or principal);
• medical advice and information from a health care professional;
• psychological advice and information from an educational psychologist;
• advice and information in relation to social care;
• advice and information from any other person the local authority thinks appropriate; and
• advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from. This can include a speech and language therapist, occupational therapist, physiotherapist or someone from CAMHS (Child and Adolescent Mental Health Services).

17. If a parent or young person already has their own advice and reports, these can be submitted as part of their own advice, which councils must ask for. This will ensure the advice and reports form part of the assessment process. This evidence must then be considered by the council when it decides whether to issue an EHC Plan.
18. The Regulations state that councils must provide copies of the evidence submitted by the parent or the young person to the other people from whom information is being requested.
19. The Code says:

• 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 of EHC needs assessment and EHC plan development, 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).

20. Councils have a legal duty to review and amend an EHC Plan when a child or young person transfers from one phase of education to another. Phase transfer is the moving between particular stages of education and includes moving from infant to junior school.
21. Councils must complete phase transfer reviews for children moving from infant to junior school by 15 February in the year of transfer.
22. The Code says that advance planning for such moves is essential. It states that an EHC Plan ‘must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning and, where necessary, commissioning of support and provision at the new institution’.

What happened

EHC needs assessment

23. In June 2019, Mrs X asked the Council to do an Education, Health and Care (EHC) needs assessment for her son, B. B has dyslexia and autism spectrum disorder. In September 2020, B was due to move from infant to junior school.
24. The Council acknowledged Mrs X’s request a few days after she made contact. It said it would aim to decide whether to go forward with an assessment in the next six weeks.
25. In July, the Council contacted B’s school to inform it about Mrs X’s request and to obtain certain information.
26. In August, the Council replied to Mrs X to say it had agreed to complete an EHC needs assessment for B and provided a six week deadline for Mrs X to send any additional information. It said this was in line with the statutory timeframe.
27. A few days later, Mrs X asked the Council to arrange assessments for B on the following: speech and language therapy, auditory processing, visual processing and dyslexia, a dyslexia test, and mental health. She also requested a young carer assessment and an educational psychologist assessment. Mrs X asked the Council to confirm within five days whether it would agree to the reports and provide reasons if not.
28. Later in August, Mrs X chased the Council for a response about whether it had agreed to commission the reports she had requested. The Council replied a few days later to say it would respond to her request after considering the occupational therapist report Mrs X had provided.
29. In September 2019, Mrs X chased the Council again for a response. The Council said an educational psychologist would assess B and produce a report that would inform its decision and identify any areas of difficulty or concern that would require further investigation. Further assessments would only be commissioned if the report identified any unmet needs. The Council explained this was because if no significant unmet needs were identified, it would be unable to commission reports as this would be considered an unreasonable use of public expenditure.
30. The Council said, based on the information provided by Mrs X, this did show B had some difficulties in speech and language, and occupational therapy and auditory processing-related needs. However, it said the information did not indicate that these difficulties were significant enough to require education provision that was additional to or different from the support available at school.
31. In September, Mrs X confirmed B had an assessment with an educational psychologist coming up that the Council had arranged. She requested an assessment of B’s communication and language needs too. She asked the Council to confirm within a week when this would take place, otherwise she would seek reimbursement for the expense of her organising a private assessment.
32. In November, the Council sent Mrs X a draft EHC Plan.
33. In December, Mrs X told the Council she disagreed with the draft EHC Plan and asked to meet with the Council to discuss it.
34. A week later, the Council sent Mrs X its reply to a letter from her MP about B’s situation. It said as it had sent a draft EHC Plan, this would support B accessing education provision. The Council said it did not think it needed to commission the additional reports requested by Mrs X. If Mrs X commissioned the reports herself, the Council said it would consider any recommendations they made and, if necessary, amend the plan.
35. In January 2020, Mrs X complained to her local Councillor about the delays.
36. In February, B had an assessment with an educational psychologist that Mrs X had arranged. The assessment found that B had dyslexic difficulties and recommended, amongst other things, that B receive three three-quarter hour sessions each week with a dyslexia teacher in a one-to-one or small group setting.
37. Mrs X contacted the Council a few weeks later to report that B had been self-harming due to school-related anxiety and was refusing to go in to school. She asked for help from its inclusion support service as she wanted to prevent B from falling out of education.
38. In March, Mrs X spoke with an officer of the Council about the potential impact of COVID-19 on the Council’s ability to make SEN provision. The Council emailed Mrs X to say it would continue with B’s EHC Needs assessment and it would go ahead with the meeting at the end of month to discuss the draft. However, the Council said it expected the duty to make all education provision specified in EHC Plans would be removed during the pandemic.
39. Mrs X instructed a solicitor following this contact with the Council. The solicitors sent the Council letters about possible Judicial Review action because of the delays in finalising B’s EHC Plan as well as delays in amending his brother’s EHC Plan following an annual review.
40. In April, the Council replied to the letter sent by Mrs X’s solicitors about potential Judicial Review action. The Council said a meeting to discuss Mrs X’s concerns about the draft EHC Plan took place at the end of March. The Council produced a working document from this meeting, which it sent to Mrs X. It said it had agreed with Mrs X the steps it would take to be able to issue a final EHC Plan.
41. Mrs X sent the Council details of three incidences of restraint of B at school from earlier in the year and a number of expert reports. The reports included an Autism Spectrum Disorder (ASD) assessment diagnosing B as having ASD and recommending a separate assessment for B’s anxiety. The Council said it was working through Mrs X’s amendments to the EHC Plan.
42. In late April, Mrs X sent the Council a revised draft of B’s EHC Plan. She said if this were finalised by the end of the week then her judicial review claim would be stopped. She asked for the EHC Plan to be finalised to allow her to make use of her appeal rights to the SEND Tribunal for any remaining issues. She also suggested mediation could help settle any remaining issues.
43. The Council responded to Mrs X to confirm it would finalise the EHC Plan. It said agreement still needed to be made on whether the following provision would be included in the EHC Plan: a laptop for sole use, direct occupational therapy treatment sessions, and direct teaching by a dyslexia-trained teacher.
44. Mrs X replied to this email to add that wide-ruled, tinted paper should be included. She asked the Council to resolve the dispute about the psychology assessment. Mrs X flagged that this was needed before B transitioned to his new school.
45. The next day, the Council sent the final EHC Plan to Mrs X. B’s primary school was named in Section I of the Plan as well as the junior school he was moving to in September. The Plan provided a list of people who contributed to it. This included an occupational therapy report from January 2020 organised by Mrs X.
46. A few days later, Mrs X complained to the Council about its EHC needs assessment process, the length of time it had taken to issue the final Plan and the impact this had on her and her son. Mrs X asked the Council to reimburse her for the legal and expert reports costs, to provide compensation for the delays and organise a course of therapy for her son due to the impact of his needs being unmet.
47. In May, mediation between the Council and Mrs X took place to resolve the issues Mrs X had raised about B’s EHC Plan. The Council issued a revised EHC Plan in June.
48. In May and July 2020, the Council sent Mrs X its stage two and stage three complaint responses. It made the following findings:

• The Council upheld Mrs X’s complaint about its failure to meet the statutory timescales for assessing and issuing the EHC Plan. It accepted the process took 45 weeks instead of the required 20 weeks. It said the delay was due to a significant backlog of cases and a lack of sufficient staffing to address this. The Council apologised to Mrs X;
• However, the Council said certain aspects of Mrs X’s complaint fell within the jurisdiction of the SEND Tribunal and not its complaints process. This applied to Mrs X’s complaint that the Council did not fully assess B’s needs and failed to seek advice and information from professionals she had asked it to;
• The Council gave reasons why the meeting to discuss B’s draft EHC Plan from November 2019 was delayed until end of March 2020. It said this was because of availability issues concerning Council officers, the head teacher and additional reports commissioned by Mrs X;
• The Council agreed to reimburse Mrs X for cost of the occupational therapy and dyslexia assessment. It gave reasons why these specific costs would be reimbursed. It agreed to arrange a speech and language therapy assessment for B;
• The Council said some of its evidence indicated certain reports commissioned by Mrs X were not necessary. The Council explained, therefore, it would not reimburse Mrs X for these reports as they had not contributed to B’s final EHC Plan. It said this applied to a supplementary occupational therapy report because this had only been relied on in the Plan following Mrs X’s requests for this during mediation;
• The Council said it did not fund legal support and refused to cover the legal costs paid by Mrs X. It said it did not accept Mrs X’s argument that legal action was necessary to make sure B’s EHC Plan was issued. It explained that it did issue the final Plan after the Council had worked with Mrs X on a number of draft versions and participated in mediation; and
• The Council did not agree to provide compensation for the delay and any lost educational provision.

49. In July 2020, the Council held a virtual meeting between it, B’s infant and junior school, and certain professionals involved in his education to discuss B’s transition to junior school. The parties to the meeting agreed actions that B’s junior school would take.

Analysis – was there fault by the Council causing injustice

Failure to assess fully and properly B’s special educational needs during his Education, Health and Care (‘EHC’) needs assessment

50. Mrs X complains the Council failed to assess fully and properly B’s special educational needs during his EHC needs assessment. She says the Council did not seek advice from the professionals that she and other professionals had requested.
51. Mrs X asked the Council to obtain advice and information from various professionals during B’s EHC Needs assessment and provided reasons why. The Council replied to Mrs X’s request to say it would only commission further assessments if these were identified as needed in the educational psychologist’s report it had commissioned. If this report did not indicate B had significant unmet needs, the Council said it was unable to commission further reports as this would be considered an unreasonable use of public expenditure.
52. The evidence shows the cost of the reports requested was a decisive factor in the Council’s decision-making process. The Council is under a duty to manage public expenditure reasonably and was entitled to await the outcome of the educational psychologist’s report before committing to further costs. I, therefore, do not find the Council at fault here.
53. B’s draft EHC Plan from November 2019 shows the Council had considered advice from Mrs X, B, B’s infant school, social care and the educational psychologist report it had commissioned. The evidence does not show how the Council considered one of the two reports Mrs X had provided. This is fault.
54. In line with paragraph 17 and 19 above, the Council was obliged to consider Mrs X’s report as part of the advice she had provided. This caused Mrs X stress and distress chasing the Council. It is likely that this fault also contributed to the delays in the process.

Failure to issue B’s draft and final EHC Plan within the fixed statutory timescales

55. In line with paragraph 20 above, 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.
56. Mrs X requested an EHC Needs assessment in June 2019. This means the final EHC Plan should have been issued by the beginning of November 2019. The Council issued a final EHC Plan in April 2020.
57. I find the Council at fault for this significant delay. The Council has accepted this fault and that there was a delay of 25 weeks.
58. After the Council issued a final EHC Plan in April, Mrs X had the right to appeal to the SEND Tribunal if she was unhappy with the content of the Plan. I have decided not to investigate any potential delays from this point onwards because Mrs X had this right of appeal (see paragraphs seven and eight above).
59. The Council has apologised to Mrs X for the delays, but it refused to provide a financial remedy. I find the Council at fault here. The Council should have considered appropriate remedies for the injustice Mrs X and B had experienced.
60. The Council’s fault has caused Mrs X and B injustice. During the 25 weeks delay, B missed out on special educational provision that his final EHC Plan would have provided.
61. I have seen evidence that shows there were occasions when B refused to attend school and self-harmed during this 25-week period. However, I cannot say whether the Council’s actions led or contributed to this.
62. Mrs X experienced stress and distress during this period of delay. She went to time and trouble not only in bringing her complaint to the Council, but also in chasing the Council to ensure it would issue a final EHC Plan. This delayed her right of appeal too.
63. The Ombudsman’s focus report says:

“Delay is a factor most common in SEND [Special Educational Needs and Disability] complaints we investigate. Sometimes, councils have attributed this to staff shortages … We expect councils, as the lead agency in the EHC process, to have appropriate commissioning and partnership arrangements in place to allow SEND officers to obtain advice for EHC plans in a timely way and to have mechanisms to address problems that arise.”

64. The Council said the delays occurred because of a significant backlog of cases, but additional staff had since been appointed to deal with this issue.

Failure to meet the statutory timescales to review B’s EHC Plan ahead of his phase transfer to a new school

65. B was due to transfer from infant to junior school in September 2020.
66. As explained above, B’s final EHC Plan should have been issued by November 2019. The Council then had a duty to review B’s EHC Plan by 15 February 2020 ahead of this phase transfer (see paragraphs 20 and 21 above). This phase transfer review did not take place in time due to the Council’s delays in the EHC Plan assessment and development process. This is fault. This caused injustice to B as this phase transfer review was delayed until a meeting between his junior and infant school took place in July 2020. This delayed Mrs X’s appeal rights too.

Refusal to reimburse Mrs X for the legal fee paid

67. Mrs X says she had to instruct solicitors to ensure the Council complied with what was expected of it.
68. The Ombudsman does not recommend that councils reimburse complainants’ legal fees as a matter of course, as complaints procedures and the EHC needs assessment process do not generally require legal representation to negotiate.
69. However, we can recommend that people receive financial remedies for legal fees if we decide, on balance, the evidence shows it was necessary for them to instruct a solicitor.
70. In my view, Mrs X’s use of legal representation was justified. At the time the solicitor’s letter was sent to the Council, it had exceeded the deadline for issuing a final EHC Plan by 20 weeks. The Council had failed to do what it was supposed to do. It was not unforeseeable for her to believe that she needed the help of a solicitor to try and change that.
71. Mrs X says she spent £882 on solicitors’ fees. However, half of this amount concerns matters that relate to her older son, which is not within the scope of my investigation. I have reviewed the invoice Mrs X received and understand Mrs X paid £441 for legal fees that related to B’s EHC Plan. I do not find this amount excessive. I have, therefore, recommended the Council reimburse Mrs X for the legal fees that relate to B.

Refusal to reimburse Mrs X for the expert report fees paid

72. Mrs X complains she asked the Council to seek advice and information from certain professionals, but the Council refused. Mrs X complains this led her to commission certain reports herself.
73. The Council has agreed to reimburse Mrs X for the cost of these reports except an additional occupational therapy report.
74. The Council said it had agreed to reimburse Mrs X only for the reports that had helped produce B’s EHC Plan. However, it said that it was not reasonable to expect the Council to reimburse her for the additional occupational therapy report when this was not identified by the school or educational psychologist as necessary.
75. I understand that Mrs X is unhappy with the Council’s decision not to reimburse her for the cost of the additional occupational therapy report. However, I am satisfied the Council has properly considered this aspect of her complaint and provided reasons. I have reviewed the educational psychologist’s report from October 2019. I note that it does not recommend an additional occupational therapy report.
76. This is a decision the Council was entitled to make and I do not find the Council at fault here. In line with paragraph five above, I cannot question the content of a decision without evidence of fault in how the Council reached its decision.
77. Mrs X asked the Council to provide B with cognitive behavioural sessions to help rebuild his confidence and self-esteem, which were affected by his needs not being met. I understand that this educational provision has not been included in B’s final EHC Plan. I cannot direct changes to the sections of B’s EHC Plan that concern his educational provision. Only the SEND tribunal can do this. As Mrs X had a right of appeal to this tribunal, I cannot decide whether cognitive behavioural sessions should be provided for B in these circumstances.

Allegation Mrs X had asked for a delay in arranging a meeting to discuss B’s draft EHC Plan

78. Mrs X says the Council incorrectly said she asked for a delay in meeting to discuss B’s draft EHC Plan.
79. I am satisfied the Council has fully considered and responded appropriately to this part of Mrs X’s complaint (point three of paragraph 48 above provides the Council’s response). I do not find fault in the Council’s actions.

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Agreed action

80. I find the injustice to Mrs X and B has not been remedied.
81. Ofsted and the Care Quality Commission jointly inspected the Council in March 2020. Their report notes that “too many” EHC plans were not being completed within the statutory timeframes. The report says that despite positive efforts by the Council, many parents felt highly frustrated, angry and “justifiably dissatisfied” about how long they had to wait. This is clearly the case here.
82. The Council has agreed to make a payment to Mrs X, on behalf of B, of £400 per month for each month from November 2019 to the end of April 2020 (six months: £2400). I have considered the Ombudsman’s published guidance on remedies when recommending this remedy and included the following factors:

• B was at an important phase in his education where a phase transfer should have taken place, but the delays meant he missed out on this taking place within the statutory deadline;
• B missed out on the special educational provision contained in his final EHC Plan during the 25 week period of delay; and
• Mrs X went to time and trouble chasing the Council.

83. During the period of delay, Mrs X arranged and paid for three sessions of specialist dyslexia tuition for B. B’s final EHC Plan from June 2020 states that staff supporting B and his 1:1 support staff member should be trained and supported by an external dyslexia consultant. The Council has agreed to reimburse Mrs X for the cost of the dyslexia tuition she paid for, which came to £80.
84. Given the time and trouble Mrs X was put to chasing the Council about the delays to B’s EHC Plan and legal fees Mrs X paid in relation to this, the Council has agreed to make a payment to Mrs X of £441.
85. Within four weeks of this decision, the Council has, therefore, agreed to make a payment to Mrs X of £2921 (£2400 for the six months B had to wait for a final EHC plan, £80 for the dyslexia tuition Mrs X paid for and £441 for the legal costs paid).
86. Within four weeks of this decision, the Council has agreed to apologise to Mrs X and B in writing for the impact of the significant delays in completing B’s EHC needs assessment and EHC plan.
87. I decided not to recommend the Council makes any service improvements as the Ombudsman has made several such recommendations in other recent decisions concerning this Council.
88. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

89. I have completed my investigation. I find the Council at fault for the delays involved in assessing Mrs X’s son’s needs and providing a final EHC Plan. This caused Mrs X and her son injustice. The Council has agreed to my recommendations above to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman