Summary: Miss B complained the Council delayed excessively in completing an Education, Health and Care Plan (EHCP) for her son, C. She also complained it failed to provide appropriate alternative education or to communicate with her properly and delayed in dealing with her complaint. We found that the Council delayed for approximately a year in completing C’s EHCP and led to him missing out on a year in a specialist setting. The Council has agreed to pay £2700 towards educational support for C and £300 to Miss B for her time, trouble and distress.

The complaint

1. Miss B complained that Liverpool City Council (the Council), in respect of her son C:
• delayed excessively in completing an Education, Health and Care Plan (EHCP);
• failed to provide appropriate or sufficient education for C during this period;
• failed to communicate with Miss B in a transparent and timely way;
• failed to name a school which could meet C’s needs and was able to offer a place; and
• delayed in dealing properly with her complaint about the process.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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)

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How I considered this complaint

8. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

Special educational needs

10. A parent of a child with special educational needs can request the Council carries out an assessment of those needs. The Council must decide whether to carry out an assessment within six weeks.
11. If the Council decides no assessment is necessary, it must provide reasons and notify the parent or young person of their right to appeal that decision to the SEND tribunal.
12. If the Council decides to carry out an assessment and considers it necessary, the Council must then produce an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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 Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
14. The timescale for assessment for an EHCP is a maximum of 20 weeks with an emphasis on completing the steps involved as soon as practicable. The Council must ensure the Plan is reviewed annually and implement any changes from the review.
15. Where a parent or young person disagrees with the contents of the Plan there is a right of appeal to the SEND Tribunal.

What happened

Background

16. Miss B’s son, C, started having difficulties at primary school in 2015/16. The school put in place some support and he was referred to a paediatrician, who put him on the autistic spectrum disorder (ASD) pathway.
17. His problems continued and he found it increasingly difficult to attend school. In October 2017 Miss B requested an assessment of C’s special educational needs. The Council refused and said it would refer C to ACE (a specialist education service for children who cannot attend school for a prolonged period for medical reasons).
18. In December 2017 the Council referred C to ACE. C received an initial medical view that he may have ASD and was referred for a more detailed assessment. Miss B requested another assessment of his special educational needs. The Council refused again in March 2018.
19. In April 2018 C started at ACE and started attending sessions on a part-time basis of two and a half hours a day. He remained on the role of a mainstream secondary school.
20. In July 2018 C’s ASD diagnosis was confirmed. In September 2018 Miss B again requested an assessment, which the Council refused. Following another request in October 2018, the Council agreed on 30 November 2018 to do an assessment.

EHCP process

21. The Council obtained reports from different professionals and organisations regarding C’s needs. On 10 July 2019 the Council issued a draft EHCP to Miss B, C’s school and ACE. On 21 August 2019 the Council started consulting with schools about possible places for C. In February 2020 the Council issued a final EHCP naming a different mainstream school.
22. Miss B was unhappy with the choice of school. She initially entered mediation with the Council and on 13 June 2020 submitted an appeal to the SEND tribunal.
23. In January 2021 the Council and Miss B agreed amendments to the EHC plan and in February 2021 the Tribunal issued a consent order ending the appeal. The amended final EHCP was issued: it stated C would remain on the role of his current school, attending ACE until September 2021 when he would start at a specialist school, preferred by Miss B.

Complaint

24. Miss B complained to the Council on 5 February 2020 about the delay in the EHCP process and the proposal to name a different mainstream school which had said it was not suitable for C.
25. The Council said the time take to complete C’s EHCP was unacceptable and it apologised for the distress caused. It said it had reminded the SEN team of the importance of keeping parents up to date with progress and to provide explanations for any delays.
26. Miss B asked the Council to escalate her complaint to stage two of the complaints procedure as she was not happy with the stage one response. She said the apology was not sufficient to recognise the distress the excessive delay had caused and the impact on C’s education.
27. The Council initially suggested waiting for the outcome of the mediation hoping it may resolve some of Miss B’s outstanding concerns. This was completed on 29 April 2020. Miss B again requested the Council consider her complaint at stage two of its complaints process.
28. On 14 May 2020 the Council said it had decided to re-open her complaint at stage one as it contained new issues which the SEN team should have the opportunity to resolve.
29. Miss B challenged this proposal. She repeated her original concerns and complained about the time taken to get C a place at ACE, the failure to consult with ACE about an appropriate placement, confusion over which school C was enrolled at, poor communication and failure to acknowledge the significant impact of the delays on her and C. On 17 July 2020 the Council responded further. It said the issue of the named school was a matter for the appeal, not for the complaints process. In respect of the rest of the complaint concerning the delay in the EHCP process and the poor communication from Council, it said it would not progress the matter to stage two as the service had not had the opportunity to consider all the issues at stage one and it was unlikely further investigation would result in a different outcome. It directed Miss B to our service.
30. Miss B complained to our office at the end of July 2020. We referred the complaint back to the Council in August 2020 to complete the complaints process. The Council met with Miss B in September 2020 and sent a final response to her on 23 October 2020. The Council apologised for the service she had received, including the delay in completing the EHCP and the poor communication throughout the process. It accepted the failures had caused additional stress to Miss B at an already difficult time and had a very negative impact on both Miss B and C.
31. In respect of a remedy, it noted that C had received a part-time education since the summer term of 2018, albeit recognising it was not full-time and C’s attendance had not been high. It said its aim had always been to reintegrate C back into mainstream education, but this had not been possible. It offered to pay for some additional support for C to the value of £500. It also agreed that the Council would provide Miss B with regular updates on progress.
32. Miss B was unhappy with the response, particularly the amount of money offered and complained to us again in November 2020.

Jurisdiction (what we can and cannot investigate)

33. I cannot investigate the period prior to November 2018 (when the Council agreed to start an assessment) for two reasons:
• Miss B had a right of appeal to the SEND tribunal each time the Council refused to carry out an assessment and I consider it was a reasonable action to take as it is the correct body set up by Parliament to consider that issue.
• We have discretion to consider events which happened more than 12 months before Miss B complained to us. Miss B complained to us in July 2020, almost three years after the first events happened. I consider it was reasonable for Miss B to have complained to us at an earlier point about these issues.
34. I cannot investigate the events after the final EHCP was issued on 11 February 2020 because Miss B appealed to the tribunal about the named school and the right of appeal arose on the day the EHCP was issued. This includes the provision of alternative education after 11 February 2020 because the lack of provision is inextricably linked to the matter subject to appeal: the suitability of the placement. Even though C was unable to attend his current mainstream school due to medical reasons, it is possible he would be able to return to a specialist setting and so the provision of alternative education is linked to the appeal.

Analysis

delayed excessively in completing an Education, Health and Care Plan

35. The Council should have completed the whole EHCP process within 20 weeks of the date of the request for an assessment. I am unclear of the exact date in October 2018 when Miss B requested an assessment again, but assuming it was around the middle of the month, the Council should have completed the process by the beginning of March 2019.
36. The Council did not complete the process until 11 February 2020 almost one year later. The Council accepts it took too long. I agree the delay was excessive and was fault. If the Council had completed the process a year earlier, it is likely C could have continued at ACE until the end of the summer term of 2020 and started at the specialist placement in September 2020, a year earlier than is currently the case. I have concluded that C missed out on approximately a year at school with the full provision of his EHCP in place.

failed to provide appropriate or sufficient education for C during this period

37. C has received part-time education since 2018 at ACE. Given that he was unable to attend his mainstream school for medical reasons and Miss B said on a number of occasions that he was not well enough to attend ACE, I cannot say the Council was at fault in not providing more alternative education. However, this does not alter my view that if the Council had found a specialist setting for C a year earlier, it is likely he could have returned to education in September 2020.

failed to communicate with Miss B in a transparent and timely way

38. The Council accepts its communication with Miss B was poor. This was fault and caused significant time and trouble and frustration to Miss B during an already difficult period.

failed to name a school which could meet C’s needs and was able to offer a place

39. I cannot consider this aspect of the complaint as it was the subject of the appeal to the tribunal.

delayed in dealing properly with her complaint about the process

40. The stage one complaint response was brief and lacked detail. Although the Council accepted it had taken far too long to complete the EHCP, it offered no remedy to Miss B or C beyond an apology. This was fault.
41. The Council then delayed the process further by refusing to escalate the matter to stage two. Even though Miss B had added in some new aspects to her complaint I consider the main issue for her was the delay in completing the EHCP. I see no reason why the Council could not have addressed this issue following her request in April 2020.
42. Instead, the Council prolonged matters further and refused to escalate the complaint to stage two until Miss B approached our office in July 2020. The Council then took another two months to respond to her complaint and offer a remedy in October 2020. I consider the Council could have reached this point four months sooner than it did. This was fault which caused Miss B additional distress and inconvenience.

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Agreed action

43. I welcome the Council’s recognition that the delays have had a significant adverse impact on Miss B and C. However, I consider that £500 towards extra support for C is insufficient to put right the loss of education in an appropriate specialist setting for almost a year.
44. So, I recommended the Council (within one month of the date of my final decision):
• paid C £2700, to be used for his educational benefit;
• paid Miss B £300 for her distress and time and trouble in pursuing the complaint; and
• took steps to ensure it completes the EHCP process within the required timescales.
45. The Council has agreed to my recommendations

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Final decision

46. I consider this is a proportionate way of putting right the injustice caused to Miss B and C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman