Summary: Dr X complained about how the Council prepared and issued Z’s Education, Health and Care plan. The Council delayed issuing the plan and failed to effectively communicate with Dr X about the progress of Z’s assessment. This caused Dr X and Z avoidable frustration and uncertainty. The Council agreed to make a payment to Dr X and to make service improvements to prevent the fault occurring again.

The complaint

1. Dr X complains that since October 2020 the Council failed to:
• meet the statutory guidelines when completing her child, Z’s, Education, Health and Care (EHC) plan assessment;
• communicate properly with her during the assessment process about which schools the Council consulted; and
• act to progress Z’s assessment between April 2021 and June 2021.
2. Dr X says that as a result she experienced avoidable stress and Z still does not have a finished EHC plan. She also says this negatively impacted Z’s mental health. Additionally, she says she spent avoidable time and trouble in chasing the Council for updates about the progress of the assessment.
3. Dr X would like the Council to find a suitable school place for Z so they can continue with their education outside hospital.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

Back to top

How I considered this complaint

7. I considered the information Dr X sent me, and I have spoken to her about her complaint.
8. I considered the Council’s response to my enquiries.
9. Dr X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Education, Health and Care Plan

10. An Education, Health and Care Plan (EHC plan) is a legal document which sets out a description of a child's special educational needs (what they can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
11. The Council must respond to all requests for an EHC plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHCP must take no more than 20 weeks.
12. Where there are exceptional circumstances it may not be possible for the Council to meet the timescales. The Council should tell the child’s parent or the young person of the reasons for any delays.
13. The Council can only issue an EHCP after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a plan or not.
14. If the Council decides to issue a plan it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request but it should be able to explain why the EHCP meets the needs of the child.
15. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHC plan, as these are appealable to SEND Tribunal.
16. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.
17. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.

Council’s communication expectations

18. The Council expects its Special Educational Needs (SEN) department to respond to communications within three working days.

What happened

19. Dr X asked the Council to assess Z for an EHC plan in late October 2020.
20. In late November 2020 the Council decided to carry out the statutory assessment for Z and it told Dr X about its decision in early December 2020.
21. Around the same time Z was admitted to hospital and this is where they received their education.
22. The Council said it received the report it requested from the Educational Psychologist (EP) at the beginning of March 2021. Four days after that, the Council decided that Z needed an EHC plan.
23. In the same month Dr X complained to the Council about the delays in the assessment process. She said that she and Z were suffering the consequences of the Council’s actions.
24. In early April 2021 the Council issued Z’s draft EHC plan. The Council said that it also contacted Dr X to find out what her preferred choice of a school for Z would be. It said that Dr X advised the hospital suggested Z required a 52-week mental health residential placement. The Council decided that it had no evidence to support this request, but the SEN, Social Care and Health Departments worked jointly to secure a suitable educational placement for Z.
25. In early June 2021 the Council responded to Dr X’s complaint. It apologised for the delay in the assessment process and the poor communication from the SEN department. The Council said that it could not issue Z’s draft EHC Plan until it had received the EP report, and it did not receive the report until March 2021.
26. The following day Dr X asked the Council to further investigate her complaint. The Council told her it would get back to her within 20 working days.
27. In early July 2021 the Council sent Dr X its final response to her complaint. It apologised for the poor communication she experienced and said it reminded its SEN officers of the importance of keeping families informed about the progress of their cases. The Council also confirmed that it had started its consultation with Dr X’s preferred school for Z and that it had asked the Health and Social Care teams to update Z’s documents with all the relevant information.
28. In July 2021 Dr X complained to the Ombudsman and said it had been 37 weeks since she requested Z’s EHC plan assessment, but the Council had not yet issued Z’s final EHC plan.
29. In September 2021 we asked the Council if it had issued Z’s final EHC plan. The Council told us it had not issued Z’s final EHC plan because it was in the process of agreeing the social care funding.
30. In the same month the Council consulted with nine schools, asking if they could meet Z’s needs. All the schools consulted said they would not be able to meet Z’s needs.

Council’s response to our enquiries

31. The Council told us that:
• once it realised that it could not secure the specialist placement for Z, it should have issued their final EHC plan, but it did not;
• it issued Z’s final EHC plan in early January 2022 and it named a mainstream school placement for them. Once they were discharged from the hospital it could amend this; and
• it reminded its SEN officers of the importance of timely responses to communications and keeping families informed of progress in their cases.
32. The Council apologised for the delays in issuing Z’s final EHC plan and accepted that it did not follow the statutory timeframes from paragraph 11. However, it said that it did not believe this caused Z any injustice as they were receiving support and education in the hospital.

Our analysis

The statutory timescale for EHC plan assessment

33. The Council accepted that it did not follow the statutory timeframes for assessing Z’s needs and producing their final EHC plan. This is fault. We consider this caused Dr X and Z avoidable stress and frustration.
34. We cannot say if Z has missed out on any provision from their EHC plan as they did receive some educational provision when they were in hospital, however we consider this further contributes to Dr X’s and Z’s uncertainty about what would have happened had the Council acted without fault.

Council’s communication with Dr X

35. The Council accepted that its communications with Dr X fell below the expected standard and were not in line with its policy. This is fault.
36. We consider this caused Dr X avoidable distress and meant she often had to chase the Council for updates about the progress of the assessment or her complaint.
37. The Council has already apologised and said that it reminded its staff of their responsibility to respond to customer communications within three working days.

Actions the Council took between April 2021 and June 2021

38. The Council did not provide evidence showing what action it took between April 2021 and June 2021. The Council issued Z’s draft EHC plan in early April, but did not consult any schools until late September 2021. This is fault. We consider this further contributed to the delays in the statutory process that affected Dr X and Z.

Back to top

Agreed action

39. Within one month of the date of the final decision statement, the Council will:
• pay Dr X £300 to recognise the distress, frustration and unnecessary time and trouble she experienced; and
• pay Dr X, on behalf of Z, £150 to recognise the uncertainty about what provision they would receive outside of the hospital setting. Dr X should use this to support Z’s social and educational needs.
40. Within three months of the date of my final decision the Council will:
• remind staff they should issue final EHC plans as soon as possible and within the statutory timeframes; and
• remind staff they must send consultations to schools without delay.

Back to top

Final decision

41. We have found evidence of fault leading to personal injustice. We have recommended action to remedy that injustice and prevent reoccurrence of the fault and the Council agreed. Our investigation is now complete.

Back to top

Investigator's decision on behalf of the Ombudsman