Summary: Mrs X complained the Council delayed issuing an Education, Health and Care Plan for her child, and delayed making provision to meet their special educational needs. Mrs X says this resulted in a loss of education for her child and uncertainty and distress to the family. We have found fault by the Council and the Council has agreed a remedy to address the injustice caused.

The complaint

1. Mrs X complains the Council delayed issuing an Education, Health and Care Plan for her child, and delayed making provision to meet their special educational needs. Mrs X says this has resulted in a loss of education for her child and uncertainty and distress to the family.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. A child with special educational needs may have an Education, Health and Care plan (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. Only the tribunal can do this.
8. The courts have said where a complainant has appealed to the tribunal, we cannot investigate a council’s decision relating to the provision of alternative education pending the appeal, nor seek a remedy for the council’s failures.
9. We may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
10. 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)
11. Under our information sharing agreement, we will share our decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

12. I have exercised discretion in investigating Mrs X’s complaint about events prior to 12 months ago. This is because the Council provided its final response in December 2019 and Mrs X brought her complaint to us within 12 months of this date.
13. I have discussed the complaint with Mrs X and considered the information she provided.
14. I have made enquiries to the Council and considered the information it provided.
15. Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
16. I have also considered the relevant legislation and statutory guidance as set out below.

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What I found

Special Educational Needs and Education, Health and Care plans

17. A child or young person has Special Educational Needs (SEN) if they have a learning difficulty or disability which calls for special educational provision to be made for them. Most children have these needs met within local early years, mainstream school or college settings. Support at this level is called SEN support.
18. Some may require an Education, Health and Care (EHC) assessment for the local authority to decide whether it is necessary to make provision in accordance with an EHC plan.
19. The purpose of an EHC plan is to make special educational provision to meet the child or young person’s special educational needs. It is also to secure the best possible outcomes for them across education, health and social care and, as they get older, prepare them for adulthood.
20. The Children and Families Act 2014 (‘the Act’), the Special Educational Needs Code of Practice 2015 (‘the Code’) and the Special Educational Needs and Disabilities Regulations 2014 (‘the Regulations’) provide detailed guidance to councils about how they should manage the process of:

• assessing children and young people for an EHC plan;
• how to decide whether to issue a plan;
• the content of the plan, and
• how to implement, monitor or cease a plan.

EHC assessments

21. If a parent asks for an EHC needs assessment, councils must decide whether one is necessary and tell the parent of their decision within six weeks. (9.11 and 9.17 SEND code of practice 2015)
22. If a council refuses to assess, parents have the right of appeal to the SEND tribunal. Councils should tell parents about the right to appeal and of their requirement to consider mediation should they wish to appeal. (9.19 SEND code of practice 2015)
23. If it decides to assess, a council must seek advice from relevant professionals about the child’s education, health and care needs. It should also ask about provision that may be required to meet those needs and desired outcomes. Councils must give professionals copies of any representations made or evidence sent by the parent. Professionals must provide advice to the council within six weeks of the request. (9.52 SEND code of practice 2015)
24. Councils must send a draft EHC plan to the parent and give them at least 15 days to provide their views and representations on the content. (9.77 SEND code of practice 2015)
25. If a council agrees to changes to the draft EHC plan as suggested by the parent, it should amend and issue the plan as a final EHC plan as quickly as possible. Where changes suggested by the parent are not agreed, councils may still proceed to issue the final EHC plan. Either way, councils must notify the parent of their right to appeal to the Tribunal. (9.125 and 9.126 SEND code of practice 2015)
26. The whole process of EHC needs assessment and EHC plan development, from the point an assessment is requested until the final EHC plan is issued must take no more than 20 weeks, subject to certain exemptions. (9.40 SEND code of practice 2015)
27. Councils should allow enough time to prepare the draft plan and complete the remaining steps in the process within the 20-week overall time limit, within which councils must issue the finalised EHC plan. (9.53 SEND code of practice 2015)
28. If parents or a young person disagrees with the content of an EHC plan, they can appeal the First Tier Tribunal Special Educational Needs and Disabilities (SEND) Tribunal. 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.

29. We can consider the EHC assessment process up to the point a right of appeal arises.
30. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Alternative educational provision

31. The Education Act 1996 says if a child of compulsory school age cannot attend school for reasons of illness, exclusion from school or otherwise, the council must make arrangements to provide suitable education either at school or elsewhere such as home. This is known as alternative provision.
32. The term “suitable education” is defined as efficient education suitable to the child’s age, ability and aptitude and any special educational needs they may have. The education to be arranged by the council should be on a full-time basis unless, in the interests of the child, part-time education is considered more suitable, for reasons of their physical or mental health.
33. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.

Background – what happened

34. Mrs X has three children with SEN. This decision statement relates to Mrs X’s youngest child, who I will refer to as Child C. Child C also has various health conditions.
35. In October 2018, Mrs X asked the Council to carry out an EHC assessment for Child C. The Council decided not to conduct an assessment and told Mrs X of its decision that same month.
36. A few weeks later, Mrs X provided some additional information to the Council and attended a mediation meeting.
37. In November 2018, the Council changed its decision and agreed to carry out an EHC assessment for Child C. In November 2018, it requested advice from various professionals, including the Specialist Inclusion Support Service, an educational psychologist and the Occupational Therapy Service.
38. On 30 November 2018, Mrs X called the Council to ask when the educational psychologist’s assessment was due. The Council told Mrs X there was a waiting list, and it anticipated the assessment would take place in the spring term.
39. On 8 January 2019, Mrs X called the Council again as she was concerned about the delay in completing the educational psychologist’s assessment. The Council said it would clarify a date for the assessment to take place.
40. On 8 February 2019, the Council received the educational psychologist’s report.
41. On 5 March 2019, the Council issued a draft EHC plan for Child C.
42. Mrs X attended a meeting with the Council on 7 March 2019 to discuss the plan. Following the meeting, Mrs X provided written comments on 11 March 2019. The Council says Mrs X attended a further meeting with the Council and the educational psychologist on 22 March 2019.
43. The Council says Mrs X asked it to send a copy of the draft EHC plan to a local mainstream school, School E.
44. On 30 April 2019, School E replied to the Council and said Child C’s attendance would not impact on the school’s use of resources in the nursery setting. However, it said it would require additional funding and an increase in staffing capacity to meet Child C’s needs when they moved to Reception.
45. On 20 May 2019, the Council issued the final EHC plan. The plan named School E as the placement for Child C but did not include any information about their social care needs. The plan said a referral had been made to the occupational therapist but no information had been received due to a 12 month waiting list.
46. Child C attended the nursery at School E. However, Mrs X says she became concerned School E was not able to meet Child C’s needs. In July 2019, the Council wrote to a nearby specialist education school, School D, at Mrs X’s request. It asked School D to consider if a placement for Child C was appropriate. At about the same time, the Council says it received a notice for mediation to discuss the content of the EHC plan with Mrs X, including the suitability of Child C’s placement at School E.
47. Shortly after, the Council received a response from School D. It said a placement at the school was not appropriate because Child C was working within the expectations of children their age and did not present as a child with moderate learning difficulties.
48. The Council says Mrs X told it in mid-July that she wanted Child C to attend School D.
49. The Council received the occupational therapist’s report on 17 July 2019.
50. Mrs X attended mediation on 31 July 2019. The mediation meeting agreed several outcomes including recognition that the existing EHC plan was not reflective of Child C’s needs and required amending. The Council said it would issue an updated plan by 16 August 2019 to include an occupational therapist’s report, a social care assessment and Child C’s recent diagnosis of autism. The Council also agreed to consult with School D, School E and another school, School F.
51. The Council issued a proposed amended EHC plan on 23 August 2019. The plan included information from the occupational therapist’s report but did not include Child C’s diagnosis of autism or a social care assessment.
52. Mrs X says she told the Council she could not send Child C to School E in September 2019 when they were due to start Reception. She says this was because School E told her it could not keep Child C safe in Reception because it did not have the necessary resources.

What happened next?

53. Mrs X says Child C did not attend School E when the September term started, for the reasons previously stated.
54. On 12 September 2019, Mrs X complained to the Council about the delays in issuing the EHC plan and obtaining the professionals’ assessments. She also complained the Council had not carried out a social care assessment and had not provided the correct funding to School E.
55. The Council says Mrs X registered an appeal to the Tribunal on 26 September 2019 about the final plan issued in May 2019.
56. On 7 October 2019, the Council issued an amended EHC plan. This referred to Child C’s diagnosis of autism and included details from the occupational therapist’s report. The plan did not provide any details about Child C’s social care needs and said it was waiting for information regarding this.
57. The Council says its SEN panel decided on 15 October 2019 that a mainstream school with support could meet Child C’s needs. It says it held a meeting with Mrs X on the same date to discuss further amendments to the plan.
58. On 16 October 2019, the Council issued an amended version of the EHC plan. It said Child C may require further assessments regarding communication and gross motor skills but did not provide any information about their social care needs.
59. On 23 October 2019, the Council provided its Stage 1 complaint response. It said it issued the draft EHC plan without a social care assessment because there was a shortage of social workers. It said if it had waited for the assessment, the plan would have taken longer than the statutory 20 weeks.
60. The Council said School E had confirmed it could meet Child C’s needs when they began attending nursery in April 2019. It said it provided funding to the school in time for it to find suitable support from September 2019, when Child C would move to Reception. The Council said School E was within its notional SEN budget and had sufficient funds.
61. Mrs X replied on 4 November 2019 and asked for her complaint to be escalated to Stage 2. She said the Council had taken longer than 20 weeks to provide the final EHC plan even though the social care assessment had not been completed. She said School E had told the Council before the summer break, and again in September that it could not meet Child C’s needs because it required additional funding to meet the recommendations of the amended EHC plan.
62. On 12 November 2019, Mrs X attended a dispute resolution meeting with the Council and School E. The Council said it recognised the existing EHC plan was not reflective of Child C’s needs and did not include a social care assessment. It said the document was under review and it discussed an amended version of the plan with Mrs X.
63. During the meeting, School E said it would provide the Council with confirmation it could not meet Child C’s needs. The Council said it would consult with School D about a potential placement for Child C. It also said it would contact its Education Service for children out of school to see if it could offer any services.
64. On 14 November 2019, the Council told Mrs X that School E and School F had confirmed they could not meet Child C’s needs. It also issued an amended version of the EHC plan. This version did not include any information about Child C’s social care needs.
65. On 15 November 2019, Mrs X asked the Council to add the professionals’ recommendations to the plan. She said some of the safeguarding information in the existing plan was vague and requested the plan was amended to be more specific. Mrs X asked the Council to send the amended version of the EHC plan to School D as soon as possible.
66. The Council issued an amended EHC plan on 9 December 2019 which included more specific safeguarding measures. The plan did not provide any information about Child C’s social care needs.
67. On 11 December 2019, the Council issued the final EHC plan, naming School D as the placement for Child C. The plan said Child C was awaiting a social care assessment.
68. On 16 December 2019, the Council sent a Consent Order to the Tribunal. The Council says it conceded the appeal because it agreed with Mrs X that School D would be named on the plan.
69. On the same day, the Council issued its Stage 2 complaint response. It confirmed it decided to issue the EHC plan without completing the social care element because there was a lack of social workers and a backlog of assessments. The Council apologised for this.
70. The Council said it provided funding to School E in time for it to find support before Child C moved to Reception in September. It also said the school had sufficient funding within its notional SEN budget to cover the cost of provision. The Council acknowledged the length of time taken to complete the EHC process and the issues regarding Child C’s transition to Reception. It said it agreed it needed to make progress within the Education, Health and Social Care setting and said it intended to develop its processes until it gets it right.
71. Child C started a phased introduction to attend Reception at School D on 16 December 2019. On 18 December 2019, Child C was removed from the roll at School E.
72. On 10 January 2020, the Tribunal ordered the Council to amend and issue Child C’s plan to include the wording agreed between Mrs X and the Council. It ordered the appeal was concluded and disposed of by consent, and that a proposed hearing scheduled for 16 and 17 January 2020 was vacated.
73. Mrs X says Child C began to attend School D on a full-time basis in March 2020.
74. On 24 April 2020, the Council carried out an assessment over the telephone to identify Child C’s social care needs. It identified that Child C would benefit from accessing activities outside the home and acknowledged this would also help relieve some pressure for the family. The Council agreed to provide support from a Personal Assistant for the family and said Child C qualified for four hours per week support for social activities.

Analysis - is there evidence of delay?

75. The amount of information provided by Mrs X and the Council was considerable. In this statement, I have not made reference to every element of that information, but I have not ignored its significance.
76. Mrs X complains the Council incurred delays in issuing the EHC plan. Having reviewed the information provided, there is evidence of delay throughout the process.
77. As stated at paragraph 23, professionals must provide advice to councils within six weeks of the request. The evidence shows the Council requested professional advice on 16, 17 and 26 November 2018. Although some of this advice was provided within six weeks, the Council did not receive the educational psychologist’s report until 8 February 2019 and the occupational therapist’s report until 17 July 2019. I acknowledge the Council says the educational psychologist had a waiting list, but I have seen no evidence to indicate the Council tried to expedite the report until after Mrs X called to follow this up. In addition, I have seen no evidence to indicate the Council followed up its request to the Occupational Therapy Service. The delay in obtaining these reports is evidence of fault by the Council.
78. The evidence also shows delay in issuing the final EHC plan, as this was issued 31 weeks after Mrs X’s request. Although the Council told Mrs X it issued the final plan without a social care assessment to avoid exceeding the statutory 20 weeks, this timeframe had already been exceeded.
79. The SEND Regulations and the Code of Practice are clear the whole process must take no longer than 20 weeks, subject to certain exemptions. It is also clear that councils should allow enough time to prepare the draft plan and complete the remaining steps within this timeframe. I am satisfied Child C’s case was not subject to the exemptions of this requirement and therefore, the Council is at fault for the delays incurred.
80. There is also evidence of delay in issuing the proposed amended plan following the mediation meeting in July 2019. At the meeting, the Council agreed to provide a revised plan by 16 August 2019. However, the Council did not issue the amended plan until 23 August 2019. I acknowledge this delay in itself may not have caused a significant injustice, but I consider it is indicative of the Council’s pattern of delay throughout the EHC process. I am also critical of the Council for issuing the revised plan without making all the amendments as agreed in the mediation.

The social care assessment

81. The Council issued Child C’s final EHC plans on 20 May 2019 and 11 December 2019. Neither of the plans contained information about Child C’s social care needs. The evidence shows a social care assessment was not carried out until 24 April 2020, after both plans were issued.
82. Regulation 6(1)(e) of The Special Educational Needs and Disability Regulations 2014 says local authorities must seek advice and information in relation to social care as part of an EHC needs assessment.
83. I acknowledge the Council says it had a lack of social workers. However, the Council is at fault for issuing the EHC plans without obtaining advice about Child C’s social care needs, as required, and for the delay in obtaining this advice for approximately 17 months.

Provision for Child C

84. Mrs X says Child C was out of school from September 2019 until mid-December 2019 when they started attending School D as part of a staged introduction to Reception.
85. The Council named School D as the educational setting for Child C in the EHC plan issued on 11 December 2019. Up until this point, the Council named School E as the educational setting. Mrs X says School E told her it could not meet Child C’s needs in Reception with the existing level of funding. As a result, she says she could not send Child C to school because it could not keep them safe.
86. Mrs X says the Council made no provision for Child C during this period, despite it saying in the dispute resolution meeting on 12 November 2019 that it would liaise with the Education Service for Children Out of School. I acknowledge Mrs X’s comments about the lack of provision and funding. I also acknowledge the Council says it has no records of any arrangements to make alternative provision during this period.
87. However, when the Council issued the final EHC plan in May 2019, Mrs X had the right of appeal to the tribunal and was therefore able to appeal the placement for Child C. As a result, the question of whether School E was a safe place for Child C to attend was for the tribunal to decide once the school was named in the plan. Because of this, and in line with paragraph eight of this statement, I cannot investigate the Council’s decision about the provision provided to Child C, the suitability of the placement or the level of funding to meet the required provision for this period.

Was there injustice to Mrs X and/or Child C?

88. Having identified fault, I must consider if this caused an injustice to Mrs X and/or Child C. Mrs X says the delays incurred by the Council caused considerable avoidable distress, worry and frustration to herself and her husband, which adversely affected their mental health. Mrs X says this impacted the whole family.
89. Mrs X says she also spent a lot of time and trouble trying to obtain an EHC plan for Child C, and in pursuing her complaint with the Council.
90. Mrs X also says the delay in carrying out the social care assessment and in obtaining the occupational therapist’s report meant the plans issued by the Council were not fully reflective of Child C’s needs. This is because the Council had not received the professionals’ advice and it therefore did not have a complete picture of Child C’s requirements.
91. Mrs X says these delays impacted Child C. She says the lack of a social care assessment meant the plan made no provision for Child C’s social development within the school setting. I consider the delay of 17 months in obtaining the social care assessment, which recommended additional support for Child C, meant they missed out on the recommended provision for this period.

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Agreed action

92. To address the injustice identified, the Council has agreed to take the following action:

Within one month of the final decision:

• Provide an apology to Mrs X;
• Make a payment on behalf of Mrs X, her husband and Child C of £300 in recognition of the avoidable distress, worry and frustration caused by the delays throughout the EHC process;
• Make a further payment of £200 to Mrs X in recognition of the time and trouble taken in pursuing the Council to provide a plan and in pursuing her complaint;
• Make a payment of £1,700 to be used for social care support for Child C, for the 17 months of missed provision caused by the delay in carrying out a social care assessment.

93. Within 3 months of the final decision:

• Carry out an audit to identify any other cases where there have been delays in assessing and issuing EHC plans within the last 12 months, and
• Produce an action plan to provide appropriate remedies to the cases identified where there has been delay.

94. Within 6 months of the final decision:

• Carry out a review of its processes to ensure it completes the implementation of EHC plans in line with the statutory guidelines.

The Council is required to provide us with evidence it has complied with the above actions.

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Final decision

95. I have found fault by the Council, and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman