Summary: the Council delayed completing the assessment of X’s special educational needs and issuing a final Education, Health and Care Plan. This caused her injustice as it delayed her receiving the additional support she needed by four months. The Council will apologise and make a payment to recognise the injustice caused. It has already altered its processes to ensure that the faults identified do not happen in future.

The complaint

1. The complainant, whom I shall refer to as Mr A, says Cheshire East Council delayed in completing an assessment of his daughter, X’s, special educational needs and issuing an Education, Health and Care Plan from the date he requested an assessment until it issued the final Plan and identified a suitable school. Mr A is also dissatisfied that the Council upheld his complaint about this but failed to take appropriate action to recognise this or put things right.
2. Mr A says the delay resulted in X remaining at a school that could not meet her needs properly. He says it also caused X and the family avoidable distress, time and trouble.

Back to top

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. 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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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

7. I discussed the complaint with Mr A and considered the written information he provided with his complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
8. Mr A 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.

Back to top

What I found

What should have happened

10. 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.
11. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider.
12. Councils must decide whether to carry out an EHC needs assessment of the child or young person within six weeks and must notify the parent or young person it is considering doing so. A refusal of a request to undertake an assessment may be challenged by appealing to the SEND tribunal.
13. The timescale for assessment for an EHC plan is a maximum of 20 weeks from the date of the request to the issuing of the final plan, with an emphasis on completing the steps involved as soon as practicable. Within this 20 week timescale the Council must make its decision on the request within 6 weeks and then complete the assessment and issue the final decision within 14 weeks.
14. If the assessment leads to a decision to issue a Plan the Council has a duty to issue it in the format prescribed and within the timescales in the legislation and Code of Practice, and to ensure the provision in the Plan is put in place.
15. The Code allows a council to name the school without that agreement if proper consultation with parents and the school has taken place. The parent may then appeal that decision to the Tribunal.
16. Where a Council names no school or only a type of school in a final Plan this decision carries a right of appeal to the Tribunal.
17. The Council has a two stage corporate complaints procedure. Its policy stages that it will only consider a complaint at stage 2 the complainant needs to provide credible new information or provisions of information that calls the original finding into question.

Background

18. X is now 11 years old. She is diagnosed as having Attention Deficit Hyperactivity Disorder, anxiety and learning difficulties.

What happened

19. The Council says that X’s school requested an assessment of X’s special educational needs at the end of July 2019. The Council refused this request and wrote to Mr A to tell him this on 2 August. The letter advised Mr A of his right of appeal to the SEN tribunal and about mediation. Mr A confirms that he wrote to the Council to say he was unhappy with the decision and that he intended complaining about it.
20. On 12 September 2019 the Council wrote to Mr A to tell him that it had overturned this previous decision and that it would now conduct an assessment. This was around 6 weeks after the original request so the decision was reversed within the usual six week deadline to reach a decision on a request.
21. The Council then proceeded to complete the required consultations with professionals giving them a deadline for return of these by late October (6 weeks). The Council confirms it received all the information by the end of October.
22. The Council’s case notes show that in January 2020 the Council told Mr A that the plan was being put together and the intention was to recommend support of 20 hours a week in mainstream schooling. Mr A said he would discuss this with the school (X’s school at the time) but is also noted as saying he did not consider 20 hours a week would be enough support for X. The notes state that Mr A wanted a mainstream secondary school placement for X from September 2020. He named which mainstream secondary school he would prefer and the Council agreed to consult that school, Z School.
23. In early February Z School emailed the Council to say that it did not consider it could meet X’s needs.
24. In mid-February Mr A told the Council he wanted Y School to be named as X’s secondary school placement from September 2020. Y School is a special needs day school for children aged 6 to 19 with complex communication and social difficulties. It seems that the SEN panel needed to be consulted about any plan to seek a specialist placement. The Council contacted X’s primary school in early March for the head teacher’s view on a specialist placement and evidence to support any view that this was needed.
25. The Council issued a draft EHC Plan in mid-March 2020 sending it to Mr A and asking him to provide any comments on the content and any preference for school placement within 15 days. This draft plan provided for 20 hours a week support.
26. In mid-March Mr A named another special needs school he was interested in for X.
27. In early April the SEN panel agreed to increase the hours of support for X to 25 hours a week and the panel agreed to further consider school placement once all consultation with schools including Mr A’s preferred special needs schools was completed. The Council began consulting a range of secondary schools including Mr A’s preferred schools.
28. The Council went on to issue a final EHC Plan in mid-April. It named a mainstream primary school with 25 hours a week support until the end of year 6 and specialist provision (not specifically identified) from the beginning of year 7 in September 2020. The Council’s plan was to amend section I when a secondary school place was identified.
29. The Council received responses to its consultations with secondary schools in April and the beginning of May. Y School agreed it could offer a place from September 2020 in early May after completing an assessment of X. Mr A’s other preferred schools could not. Another school said it could offer a place if its building programme was completed in time. The SEN panel agreed to placement at Y School in mid-May. The Council then issued a further amended draft EHC plan.
30. The final EHC Plan was issued at the beginning of June 2020. It named Y School from September 2020.

Mr A’s complaint

31. Mr A complained in mid-March about delays in identifying a secondary school placement for X and about the Council’s poor communication with him about this.
32. The Council provided its response at stage 1 of the Council’s corporate complaints procedure in early April. The outcome of this complaint was:
• an apology that communication with Mr A had not been satisfactory. This was attributed to staffing problems that were being addressed. Agreed that the managers would remind staff of the need to keep in regular contact with parents and give them accurate information. The Council upheld his complaint about poor communication;
• an account of the actions that the Council had taken to identify a school placement form January. The Council accepted that whilst the case had been presented to the panel on four occasions the SEN team had not provided the panel with sufficient information to enable the panel to reach a decision on placement. The Council apologised for this. At that time the Council was still in the process of beginning its consultation with secondary schools following the panel’s agreement to consult special needs secondary schools. The Council upheld the complaint about this delay; and
• it was making changes to its SEN service in light of an inspection by Ofsted and CQC. This included action to improve the timeliness and quality of EHC plans and said the Council had taken action to improve timeliness by, for example, restructuring and appointing more staff.
33. Mr A went on to request that his complaint was considered at stage 2 of the complaints procedure. This request was refused by the Council on the grounds that the matter had been fully considered at stage 1.
34. In its comments to me the Council has listed a number of improvements it has made to the provisions of its SEN services. These include:
• the appointment of an interim Annual Review Team to increase capacity with processing annual reviews;
• regular oversight and case management of annual review and change of placement cases by the three SEN Locality Managers and the Annual Review Team Manager;
• the introduction of new processes for change of placement/consultations;
• weekly SEN panel meetings;
• improving tracking of deadlines;
• a new staff training programme to ensure that the legislation and guidance in the SEN Code of Practice is understood and followed; and
• an increased number of permanent SEN staff with increased management oversight.

Was the Council at fault and did this cause injustice?

35. Councils are required to issue a final EHCP within twenty weeks of the date of the request for assessment (14 weeks from the start of the assessment to the issue of the final EHC plan). Twenty weeks from date of Mr A’s request was mid-December so the draft plan should have been issued in November and the final plan by mid-December. What happened was that the draft plan was issued in mid-March and the final plan by mid-April. There was therefore a delay of around four months. This amounts to fault. This delay caused X injustice as it delayed her receiving provision of the 25 hours a week support detailed in the final plan.
36. Mr A argues that the delay in identifying a secondary school place also caused injustice to X as the uncertainty caused her distress. The delay did not affect the provision of primary education which she was already receiving. It is difficult to conclude with any certainty if this issue could have been resolved more quickly. This is because if the final EHC plan had been issued in December and a secondary school had not been named, Mr A would have had the right to appeal to the SEN Tribunal about that so the delay in issuing the EHC plan then, in theory, meant that he lost a right of appeal at that time. But I cannot say with any certainty that a tribunal would have reached a decision before the beginning of June 2020 (when it did issue a revised EHC plan naming the secondary provision) even if Mr A had appealed in late 2019 as there is often a considerable wait for a tribunal hearing. So, there are no grounds for me to conclude that the delay in issuing the EHCP when it should been in December, caused injustice in relation to the naming of the secondary school as a result of any denied right of appeal at that time. Mr A did have a right of appeal against the non-naming of the provision in April. Even though he did not use this right, we would not investigate any delay from that time as he had a right of appeal that we would consider it was reasonable for him to have used. So, I am not considering the delay in naming the school from April when this right of appeal arose.
37. The Council has already accepted that its communications with Mr A should have been better. I accept its findings in this respect.
38. There are no grounds for me to conclude that the Council failed to take action to improve its SEN services further to Mr A’s complaint or to take action to put things right. The Council upheld the complaint and provided him with details of the action it was taking to improve its SEN services.

Agreed action

39. The Council will apologise for the delay in completing the assessment process. It will also pay Mr A £1600 to recognise the injustice caused by the consequent four month delay in providing the additional SEN support, particularly the 25 hours weekly support for X in school. This amount is calculated on an amount of £400 per month which takes account of the fact that X was in education but the provision for her special needs was absent for four months and this is entirely attributable to the delay in the assessment process. The Council will complete this action within one month of the final decision on this complaint.
40. The information provided by the Council already demonstrates it has taken action to address the shortcomings in its service to parents, for example, additional staffing, more frequent SEN panels etc as outlined in paragraph 34 above. I have not therefore made further recommendations to address this.
41. The Council’s apology for its poor communication with Mr A is sufficient to recognise the injustice this caused him.

Back to top

Final decision

42. The Council delayed completing the assessment of X’s special educational needs and issuing a final EHC plan. This caused her injustice as it delayed her receiving the additional support she was assessed as needing by four months. The Council will take the action agreed above to recognise this injustice.

Back to top

Investigator's decision on behalf of the Ombudsman