Summary: Mrs X complained about the Council’s response to her request for an Education, Health and Care Plan, for her son who has special educational needs. We have found the Council to be at fault because it took too long to carry out an assessment. This caused distress and uncertainty about her son’s transition into secondary education. To remedy this injustice, the Council has agreed to apologise, make a payment and confirm the action it has taken to improve its capacity to carry out assessments without delay. We have been unable to investigate some of Mrs X’s complaint because she appealed to the Tribunal.

The complaint

1. Mrs X complains about the Council’s response to her request for an Education, Health and Care Plan (ECHP) for her son who has special educational needs. In particular, she complains about:
1. application of an unlawful policy when deciding not to carry out an assessment;
2. failure to have regard to comments made by the Tribunal when making its decision to not issue an EHCP; and
3. delay.
2. Mrs X says this has caused considerable distress and frustration, as well as impacting on her son’s well-being. The significant delay has also caused uncertainty about his move to secondary education.

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What I have investigated

3. Certain decisions related to special educational needs (SEN) have a right of appeal to the Special Educational Needs and Disability Tribunal (the Tribunal).
4. The Ombudsman cannot investigate part of Mrs X’s complaint because some it has been the subject of appeals to the Tribunal.
5. Where a parent has appealed to the Tribunal, we cannot investigate Council actions between the date the appeal right arose until the appeal is completed, where it is linked to the matters appealed. So, in these circumstances, the Council’s actions during that period are outside the Ombudsman’s jurisdiction. It also means we cannot seek a remedy for any injustice during that period.
6. For this reason, I have only been able to investigate part of 1(c) above.

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The Ombudsman’s role and powers

7. 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)
8. 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. Where someone has appealed we cannot investigate the matter under appeal. (Local Government Act 1974, section 26(6)(a), as amended)
9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs.
10. If we are satisfied with an organisation’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 this 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 spoke to Mrs X considered the information provided by her regarding her complaint.
13. I made enquiries of the Council and considered its response.
14. I also considered the relevant legislation and statutory guidance as set out below.
15. Mrs X and the Council had an opportunity to comment on a draft version of this decision. I considered their comments before making a final decision.

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What I found

Special educational needs and Education Health and Care Plans

16. A child or young person has 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.
17. Some children or young people 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 ECHP.
18. The purpose of an EHCP 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.
19. The Children and Families Act 2014, the Special Educational Needs Code of Practice 2015 (‘the Code of Practice’) and the Special Educational Needs and Disabilities Regulations 2014 provide detailed guidance to councils about how they should manage the process of:

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

EHC assessments

20. 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 of receiving the request. If a council decides not to conduct an EHC needs assessment, it must tell the parent about their right to appeal to the Tribunal.
21. If a council conducts an assessment as a result of a Tribunal order but decides it is not necessary to issue an EHCP, it must tell the parent of its decision within ten weeks from the date of the Tribunal order. Councils should tell parents about their right to appeal to the Tribunal.
22. A council has two weeks to notify a parent it will complete an EHC needs assessment, when ordered by the Tribunal to do so.

What happened

23. This chronology includes key events in this case and does not cover everything that happened.
24. Mrs X’s son, Child Y, has special educational needs that require additional support. In August 2020, Mrs X asked the Council to carry out an EHC needs assessment for Child Y. At this time, he was still at primary school. Mrs X believed he needed extra support that would only be provided if he had an EHCP. She wanted this to be in place before he was due to transition to secondary education in September 2022.
25. In October 2020, the Council told Mrs X it was not willing to carry out an assessment because it was satisfied his SEN were being met within existing school resources.
26. Mrs X appealed this decision to the Tribunal. In April 2021, the Tribunal ordered the Council to carry out an assessment. This was completed in August 2021. The outcome was that an EHCP was unnecessary because Child Y’s needs could be met within his current educational placement without the need for additional resources provided by the Council.
27. Mrs X appealed this decision to the Tribunal.
28. In March 2022, the Tribunal allowed her appeal. In response, the Council agreed to issue an EHCP.

Mrs X’s complaint to the Council

29. In her complaint, Mrs X expressed her concerns about the Council’s overall approach to her request for an EHCP, including the criteria used by the Council in making the decision not to carry out an EHC needs assessment. In response, the Council accepted there had been delay in making its decision on whether to issue an EHCP. It said this was due to increased demand and lack of educational psychologists. The Council upheld this aspect of her complaint and apologised. It also explained the action it was taking to increase capacity to meet increasing demand.
30. Mrs X was dissatisfied with this response, particularly as it did not address her complaint about the criteria used by the Council. The Tribunal judge had been critical of the Council for making this decision based on its own internal criteria, rather than the law.
31. The Council’s stage two response denied it had applied a flawed policy.
32. Disappointed by this outcome, Mrs X brought her complaint to the Ombudsman.

Analysis

33. As I have explained above, I have only been able to investigate some of Mrs X’s complaint.
34. Mrs X’s appeal rights to the Tribunal were triggered on the date the Council advised her it would not carry out an assessment in October 2020. This means I cannot look at the Council’s actions from that date until the appeal in April 2021. I am also unable to consider Mrs X’s complaint about the Council’s decision-making criteria as this is intrinsically linked to the matters considered by the Tribunal,
35. Mrs X’s second set of appeal rights to the Tribunal were triggered on the date the Council advised her it would not issue an EHCP in August 2021. This means I cannot look at the Council’s actions from that date. This includes her complaint about the Council’s failure to take account of the Tribunal’s criticism or its decisions. This is because this is intrinsically linked to the subject matter of the appeal.
36. My findings are therefore limited to the following issues:

Delay – decision not to carry a EHC needs assessment

37. The evidence shows the Council received Mrs X’s request for an assessment on 20 August 2020. It notified her on 1 October 2020 of its decision. This was six weeks and therefore compliant with the timeframe set out in the Code of Practice. The Council was not at fault.

Delay – decision not to issue an EHCP

38. The Council had ten weeks from the date of the Tribunal order on 14 April 2021 to carry out the EHC assessment. Mrs X was notified on 13 August 2021 that an EHCP would not be issued. This was seven weeks late. This was fault.
39. The Council has already accepted it took too long. It also apologised, explained the context for this and set out the action it was taking to increase the educational psychology resources in its area.

Injustice

40. This delay extended the overall timeframe by seven weeks. I consider this to be significant because Child Y’s move to secondary education was imminent. I have made recommendations below to remedy the distress and frustration caused by this delay.

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Agreed action

41. Within four weeks from the date of my final decision, the Council has agreed to take the following action:
1. Apologise to Mrs X.
2. Pay Mrs X £100 to acknowledge her time and trouble bringing this complaint
3. Pay Mrs X £500 in recognition of the distress, frustration and impact on the overall EHCP process caused by the Council’s delay.
4. Remind relevant staff of the need to comply with relevant statutory timescales for making decisions about assessments and EHCPs.
5. Provide the Ombudsman with evidence of the action it has taken to commission additional educational psychologists as referred to in its stage two complaint response.

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Final decision

42. I have found the Council to be at fault and the Council has agreed with my recommendations to remedy the injustice caused.

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Parts of the complaint that I did not investigate

43. I have not investigated 1(a), 1(b) and part of 1(c) because they relate to matters that have been the subject of appeals to the Tribunal.
44. I have also not investigated Mrs X’s ongoing complaint about the delay in issuing Child Y’s final ECHP. This is still in progress and Mrs X has not yet been through the Council’s complaints procedure. Mrs X can ask the Ombudsman to investigate this if she is unhappy with the Council’s response to her complaint, should she choose to make one.

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Investigator's decision on behalf of the Ombudsman