Summary: Mrs D complained about the Council’s delays in issuing her son’s Education, Health and Care plan after her request for an assessment. We find the Council was at fault because it took too long to issue the final Education, Health and Care plan. It also delayed responding to Mrs D’s complaint. The Council has agreed to our recommendations to address Mrs D’s injustice.

The complaint

1. Mrs D complained about the Council’s delays in issuing her son’s (E) Education, Health and Care (EHC) plan after her request for an assessment. Mrs D says this has led to E missing out on the provision and support he needs.

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What I have investigated

2. I have investigated the Council’s delays in issuing E’s EHC plan. I have not investigated the impact any missed education/provision has had on E after 22 April 2021 for the reasons explained at the end of this statement.

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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 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.
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I considered information Mrs D submitted with her complaint. I made written enquiries of the Council and considered information it sent in response.
9. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. An EHC plan describes the child’s special educational needs and the provision required to meet them.
11. An EHC needs assessment is an assessment of the education, health and social needs of a child or young person. The timescale for an EHC needs assessment is a maximum of 20 weeks.
12. If an EHC needs assessment is requested, councils must issue the parents with a decision notice within six weeks of receiving the request. 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 to the SEND Tribunal.
13. Parents also have a right to appeal to the SEND Tribunal if they disagree with the provision or the school named in the child’s EHC plan.
14. 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.
15. 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.

The Council’s complaints procedure

16. The Council aims to provide a full response to a complaint at stage one within 20 working days. If a complainant remains dissatisfied, they can have their case reviewed. The timescale for a formal response at stage two is 20 working days. For more complex cases it will be a maximum of 65 working days.

What happened

17. Mrs D contacted the Council on 13 May 2020 and asked it to assess E for EHC needs. E was registered to attend a mainstream school, but he had not attended since January 2020 because of his anxiety.
18. The Council wrote to Mrs D on 19 June and said it would not assess E. It told her she had to right to appeal to the SEND Tribunal if she was not happy with its decision.
19. Mrs D contacted the Council on 20 July and said she wanted to move towards mediation. She further set out why E needed an assessment. The Council responded and said she had not provided any further evidence.
20. Mrs D appealed to the SEND Tribunal. It registered her appeal on 16 October.
21. The Council decided it would no longer oppose Mrs D’s appeal on 23 October. It agreed to assess E.
22. Mrs D emailed the Council on 20 November and said the four-week process was coming to an end. She asked for the result of the assessment. The Council responded and said the statutory assessment is a 20-week process.
23. Mrs D complained to the Council on 29 December. She said, among other things, the Council had delayed dealing with E’s assessment.
24. The Council emailed Mrs D on 5 February and apologised for the delay in responding to her complaint. It said it hoped to send its stage one response to her shortly.
25. The Council assigned an Educational Psychologist (EP) to assess E. The EP provided the Council with his advice on 19 March.
26. The Council contacted Mrs D on 22 March. It agreed it would issue an EHC plan for E. It asked which school she wanted it to consult with.
27. The Council responded to Mrs D’s complaint on 23 March and apologised for the delays she experienced in the assessment taking place.
28. Mrs D complained again to the Council on 26 March about its delays in issuing E’s EHC plan.
29. The Council issued E’s draft EHC plan on 30 March. It asked Mrs D for comments within 15 days.
30. Mrs D emailed the Council on 6 April and asked it to consult with her preferred school of choice (School C). The Council responded the following day and said it would consult with School C as well as its school of choice (School D).
31. School C contacted the Council and declined to offer E a school place.
32. The Council issued E’s final EHC plan on 22 April. It named School D as the educational setting to provide the special educational provision for E. Mrs D responded and said she would appeal to the SEND Tribunal. The SEND Tribunal registered Mrs D’s appeal about the school placement and the special educational provision in E’s EHC plan on 17 May.
33. The Council responded to Mrs D’s further complaint on 21 June. It apologised for the delays in issuing E’s EHC plan. It said this was because of the delay in receiving advice from the EP.
34. Mrs D is still waiting to hear the outcome of her appeal to the SEND Tribunal.

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Analysis

35. The law states councils must issue a decision notice within six weeks of a request for an EHC assessment. The Council received the request on 13 May 2020 and issued its response just over five weeks later on 19 June 2020. There was no fault in the Council’s actions.
36. However, the Council did delay issuing E’s final EHC plan. It should have issued his EHC plan by 29 January 2021, which is fourteen weeks after it decided it would assess him. It instead issued E’s final EHC plan on 22 April 2021. This is nearly 12 weeks longer than the law allows which is fault.
37. The delay in issuing E’s final EHC plan caused frustration to Mrs D and in turn delayed access to her appeal rights.
38. The Council also delayed dealing with Mrs D’s complaint. It should have responded to her complaint of 29 December 2020 by 27 January 2021. It did not do so until 23 March 2021, which is a nearly two-month delay. The Council should have also responded to Mrs D’s second complaint of 26 March 2021 by 27 April 2021. It responded on 21 June 2021, which also represents a nearly two-month delay. These delays have caused Mrs D further frustration which the Council needs to remedy.

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Agreed action

39. To address the injustice caused by fault, by 20 January 2022 the Council has agreed to:

• Apologise to Mrs D.
• Pay her £250. This is a symbolic payment to recognise the frustration caused by the delays in issuing E’s EHC plan and responding to her complaint.

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Final decision

40. I have found fault by the Council, which caused Mrs D an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Parts of the complaint that I did not investigate

41. The courts have said where a loss of education coincides with an appeal about an EHC plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard cannot be investigated by the Ombudsman. Therefore, I have not investigated the impact any missed education/provision has had on E after 22 April 2021.

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Investigator's decision on behalf of the Ombudsman