Summary: Mrs G complained the Council failed to complete her son’s EHC Plan within the statutory timescales and secure his special educational provision. She also said it communicated poorly with her. The Council agreed it was at fault and provided a remedy to Mrs G. We found the Council’s remedy was not enough. It agreed to make a further payment to acknowledge the distress its faults caused Mrs G and her son’s loss of educational provision.

The complaint

1. The complainant, whom I shall refer to as Mrs G, complained about the Council’s handling of her request for special educational need (SEN) provision for her son. She said it:
• wrongly refused to complete an Education, Health and Care (EHC) Plan assessment for her son, and caused delays when the tribunal had directed it to do so;
• failed to complete his EHC Plan within the statutory timescales;
• delayed arranging the agreed EHC Plan provision; and
• communicated poorly with her.
2. As a result, Mrs G said she experienced uncertainty and distress and her son had a loss of SEN provision. She also said she had time and trouble to bring her concerns to the Council’s attention and she had financial costs for her legal advice.

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What I have investigated

3. I have investigated Mrs G’s complaint from April 2020 to April 2021.
4. The final paragraph of this decision explains why I have not investigated some parts of Mrs G’s complaint.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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)
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)

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How I considered this complaint

11. As part of my investigation, I have:
• considered Mrs G’s complaint and the Council’s responses;
• discussed the complaint with Mrs G and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the relevant law, guidance, and Council Policy.
12. Mrs G 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

13. The responsibilities of councils towards children and young people with special educational needs (SEN) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, the SEND Code of Practice 2015 (The Code). One of the ways to meet the needs of children with SEN is to issue an Education, Health and Care (EHC) plan.
14. In an assessment, councils will consider what provision is needed to meet the child’s special needs, including what type of school or institution the child should attend. They must request information and advice from certain people. This includes:
• the parent or young person;
• the school;
• healthcare professionals with a role in relation to the child’s health;
• an educational psychologist;
• their social care departments; and
• any person the parent requests as long as the council decides it reasonable to do so.
15. In normal circumstances, the whole process from the date the parent or young person requests an assessment, to the date the council issues a final EHC plan must take no more than 20 weeks. From 1 May to 25 September 2020, the government replaced that timescale with a requirement to complete the process ‘as soon as reasonably practicable’, where the council's services were affected by the COVID-19 pandemic.
16. Councils are responsible for ensuring the provision detailed in the plan is delivered. The Ombudsman expects councils to have systems in place to check that provision in an EHCP has been secured and is being provided. (‘Not going to plan? Education, Health and Care plans two years on’)
17. The SEND Tribunal is a tribunal that considers special educational needs and disability discrimination. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
18. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named. Parents can only appeal once the Council issues the final EHC plan.

What happened

19. In 2019 Mrs G’s son (Child X) was in primary school. The School and Mrs G agreed he was falling behind due to his special educational needs. So, it arranged for an educational psychologist to assess Child X.
20. The Educational Psychologist found Child X had several conditions and needs which impacted his learning, behaviour, and communication with peers and adults. And so, Mrs G applied to the Council for an assessment of Child X’s special educational needs so these could be set out in an EHC Plan.
21. The Council refused to assess Child X needs for an EHC Plan. So, Mrs G appealed its decision to a tribunal.
22. In April 2020, the Council accepted it needed to assess Child X and this was set out in the Tribunal’s Order shortly after.
23. As part of the Council’s assessment of Child G’s educational needs, Mrs G asked it to arrange for an occupational therapist (OT) to assess Child X. She told the Council her Educational Psychologist report said this was needed, as well as input from a speech and language therapist (SALT) and other professionals.
24. The Council told Mrs G it would not arrange an OT assessment of Child X. It said it was not required to do so, but it would seek advice and information from the OT who had worked with Child X and Mrs G. It also said it was seeking advice from other professionals.
25. In August 2020 the 20 weeks deadline for the Council to complete Child X’s EHC Plan expired.
26. The Council found it needed a further educational psychologist assessment which should be completed when Child X was in school. This was completed in September 2020. It told Mrs G it would take a further two weeks to draft Child X’s EHC Plan.
27. Mrs G continued to chase the Council about the delays in completing Child X’s EHC Plan. In October 2020 she complained to the Council about its failure to meet the statutory deadlines and its own promises. She also said it had failed to tell her if it would complete an EHC Plan for him.
28. The Council spoke with Mrs G and told her it would complete an EHC Plan for Child X within three weeks. It also said it would start discussions with her about a placement for his secondary school in 2021.
29. In November 2020 the Council sent Mrs G Child X’s draft EHC Plan. However, this was incomplete and failed to refer to the professionals’ reports.
30. Mrs G complained to the Council again. She said the draft she had received was incomplete and it had therefore failed to provide her with a draft EHC Plan and resolve her concerns about a secondary placement for Child X. She also said the draft she had received failed to explain she had 15 days to make comments.
31. In late 2020 the Council issued Child X’s draft EHC Plan to Mrs G. Its final EHC Plan for Child X was issued in January 2021.
32. Due to the COVID-19 lockdown between January to March 2021, schools were providing educational provision online. Only some children were allowed to attend school, which included children with an EHC Plan.

Mrs G’s complaint

33. Mrs G complained to the Council. She said it had failed to:
• complete Child X EHC Plan within the statutory timescales;
• commission an OT assessment in 2020 when she asked it to do so;
• secure the provision set out in Child X’s final EHC Plan in January 2021 by March 2021 when Child X was due to return into school; and
• list a suitable secondary school for Child X in his EHC Plan.
34. In response, the Council arranged a multi-agency meeting and invited Mrs G. This was to discuss Child X educational provision and concerns his school had raised about delivering some provision. It was agreed the School would apply for additional funding to provide some 1:1 and 1:3 support for Child X. An educational psychologist also suggested interventions for Child X.
35. In response to Mrs G’s complaint, the Council accepted it had failed to complete Child X’s EHC Plan within the statutory timescales and apologised. It said delays were also because Mrs G had asked for a number of amendments to its draft EHC Plan, which required further clarification from professionals.
36. The Council also explained it had no available local provision for Child X’s secondary school. However, it had identified a suitable school outside its area which he could attend from September 2021.
37. Mrs G was not satisfied with the Council’s response. In early April 2021, she asked it to reconsider her complaint under its stage two complaints process. She also said she had appeal to tribunal about some contents of Child X’s EHC Plan, including the naming of his secondary school.
38. In August 2021 the Council provided its final complaint response to Mrs G’s and apologised for the delay. It explained it could not consider her concerns about the contents of Child X’s EHC Plan, as she had appealed to tribunal. However, it said it:
• was at fault for failing to complete Child X’s EHC Plan within 20 weeks;
• had communicated poorly with Mrs G, which caused her additional distress;
• apologised if it had been unclear about the purpose of the multi-agency meeting;
• acknowledged it had not taken reasonable steps to commission an OT assessment, which meant Mrs G was unable to consider a secondary school placement in a timely manner; and
• had been responsible for providing Child X EHC Plan provision from January 2021, but schools were closed until March 2021 due to COVID-19.
39. The Council also said to remedy its faults and ensure these did not happen again, it:
• gave Mrs G an apology, and paid £250 to acknowledge the time and trouble she had to bring her concerns to its attention;
• paid Mrs G an additional £500 for the delay in completing Child X’s EHC Plan and secure his SEN provision; and
• had taken steps to address the issues Mrs G had experienced. This included changes to how it works to ensure it meets the statutory timescales to assess and complete EHC Plans.
40. Mrs G was not happy with the remedy the Council offered. So, she asked the Ombudsman to consider her complaint.

Analysis

Child X’s EHC Plan

41. The Council has agreed it failed to assess and complete Child X’s EHC Plan within the statutory timescales. It agreed he should have an EHC Plan in April 2020, which meant his final EHC Plan should have been completed in August 2020. It took the Council a further five months to complete his plan. This is fault.
42. The Council also said it failed to commission an OT to assess Child X’s needs for a suitable secondary school, but it was not wrong to refuse an OT assessment as part of its EHC Plan assessment.
43. I cannot fault the Council for refusing to commission an OT assessment for Child X’s EHC Plan. This is because it found it could get the information it needed from his previous OT assessment and other professionals. This was a decision it was entitled to make, and so I cannot criticise its decision.

EHC Provision

44. The Council agreed it caused delays to secure Child X’s EHC provision before April 2021. This is fault.
45. Child X’s educational provision should have started at the start of the academic year in September 2020. However, due to the Council’s delays in completing his EHC Plan until January 2021, this did not start.
46. I found the Council caused further delays from January to April 2021, which is fault. I acknowledge, due to COVID-19, the temporary national school closure made it more challenging for it to arrange Child X’s provision. However, the school was open to children with SEN, including Child X. I have therefore seen no good reasons why it could not have arranged the provision with the school and other professionals shortly after completing Child X’s EHC Plan.
47. I acknowledge Mrs G did not send Child X to School during the COVID-19 lockdown, and I have seen evidence the School informed all parents that children with an EHC Plan could attend school. I cannot say whether Mrs G would have sent Child X to school in January 2021, if his SEN provision had been put in place. However, I am satisfied he would not have received all the provision set out in his EHC Plan. He therefore missed out on the opportunity to receive some of the SEN provision set out in his EHC Plan.
48. It was first after Mrs G complained and the multi-agency meeting, Child X SEN provision started to be properly arranged as set out in his EHC Plan. The majority of the provision was first in place in late April 2021, Child X therefore missed out on his educational provision over an 8-month period.

Communication and Complaint’s handling

49. Mrs G made four complaints to the Council from May 2020 to April 2021. The Council responded informally to her first three complaints without delay. On each occasion it made promises to her it would action her concerns. However, its actions and communications failed to ensure Child X’s EHC Plan was assessed and completed as required.
50. Mrs G’s final complaint was considered under the Council’s stage two complaint process. However, its response was significantly delayed.
51. The Council agreed it communicated poorly with Mrs G during the EHC Plan process. It also apologised for its delays in responding to her complaints. This was fault.

Injustice

52. The Council has already apologised to Mrs G. It also paid her £250 for her time and trouble to bring her complaints to its attention, and £500 to acknowledge its delay in completing Child X’s EHC Plan and secure his SEN provision.
53. However, I found the Council’s payment was not enough to remedy the injustice Child X experienced. In reaching my view I am conscious Child X received some educational provision. However, the lost SEN provision had a greater impact on him due to:
• his special educational needs;
• the importance of the academic year immediately before transitioning to secondary school; and
• the length of time he missed out on the provision.
54. In addition, I also found the Council’s remedy was not enough to address the distress Mrs G experienced as a result of its faults. I found Mrs G experienced distress due to the uncertainty caused by the Council’s poor communication, complaints handling and delays in the EHC Plan process.
55. I understand the Council has had changes within its SEND team and management. It has taken steps to review its processes for how it assesses and drafts EHC Plans to ensure it meets the statutory timescales. It has also provided guidance to its staff. The Council has therefore already actioned any service improvement remedies I would have proposed, and so I have not made any further recommendations.

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Agreed action

56. To remedy the injustice the Council caused to Mrs G, the Council should, within one month of the final decision:
1. pay Mrs G a further £300 to acknowledge the distress and uncertainty she experienced as a result of the Council’s poor communication and delays in completing Child X’s EHC Plan;
2. pay Mrs G a further £1,450, to use as she sees fit. This is to acknowledge the special educational provision Child X lost, or did not have the opportunity to receive, for an 8-month period as a result of the Council’s faults.

In addition to the Council’s payment of £750, it should therefore pay Mrs G an additional £1,750.

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Final decision

57. There was fault leading to an injustice. The Council had agreed to my recommendations, it is on this basis I have completed my investigation.

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Parts of the complaint that I did not investigate

58. Mrs G complained about the Council’s refusal to assess Child X for and EHC Plan in 2019. I cannot consider this matter. This is because it is late, and it has already been considered by the tribunal.
59. I have also not considered any of Mrs G’s concerns about the contents of Child X’s EHC Plan, including the naming of his secondary school. This is because Mrs G has brought her concerns to the attention of the tribunal.

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Investigator's decision on behalf of the Ombudsman