Summary: Mrs X complained about delays with assessments and issuing a final Education Health and Care Plan (EHCP) for her daughter. She said the delays had detrimental effect on her daughter’s progress especially in view of her age and the nature of her special educational needs. We find the Council at fault for the delay in completing the EHCP and delivering special educational provisions to Mrs X’s daughter. We also find fault in the way the Council communicated with Mrs X and how it handled the complaint. The Council accepted our recommendations.

The complaint

1. The complainant, who I refer to as Mrs X, says that when carrying out an EHC assessment for her daughter, referred to as A, the Council failed to:
• Comply with statutory timescales for preparing Educational Psychology (EP) advice;
• Consider her request to replace an EP assessment with the less formal consultation;
• Provide in a timely manner a funding agreement for A’s Communication Support Worker (CSW) and involved Health in the funding discussions;
• Arrange support from the CSW within required timescales; and
• Have a regular and meaningful communication with Mrs X.

Mrs X considers the Council’s failings resulted in the lack of sufficient support for A at the critical stage of her development.

2. Mrs X complains about the way the Council handled her complaint.

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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. 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

5. I talked to Mrs X and considered the information and documents she provided.
6. I reviewed all the documents provided by the Council.
7. I considered the Ombudsman’s Guidance on Remedies (‘the Guidance’).
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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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What I found

Legislation and guidance

10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
11. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is not dependent on available resources; it is absolute and must be met by the council. (R v North Tyneside Borough Council [2010] EWCA Civ 135)
12. Under the Children and Families Act S.19 when carrying out their duties for children and young people with special educational needs (SEN) councils must have regard to:
• the views, wishes and feelings of the child or young person, and the child’s parents;
• the importance of the child or young person, and the child’s parents, participating as fully as possible in decisions, and being provided with the information and support necessary to enable participation in those decisions; and
• the need to support the child or young person, and the child’s parents, in order to facilitate the development of the child or young person and to help them achieve the best possible educational and other outcomes, preparing them effectively for adulthood.

What happened

Chronology

13. In November 2020 Mrs X asked for an EHC assessment for A. In December 2020 the Council told Mrs X it would be carrying out the assessment, but there might be delays due to capacity issues in the EP service.
14. Mrs X suggested using alternative ways to gather information needed for preparing an EHCP, without a formal EP assessment. The Council failed to address this.
15. At the end of February 2021 an EP assessed A and two weeks later prepared her statutory advice.
16. At the end of March 2021, just over two weeks after the due date, the Council provided Mrs X with a draft EHCP asking for her comments.
17. In the beginning of April 2021 Mrs X asked for a meeting to discuss the content of A’s EHCP. Because of the Easter holidays and absence of an important member of staff, this meeting only took place in the second part of April.
18. A few days after the meeting and following further exchanges with the parents, the Council issued the next version of a draft EHCP. A’s parents accepted this amended version.
19. At this stage the Council advised Mrs X there were complex funding issues around provision of the CSW support, which required discussions between senior Council’s officers and health colleagues.
20. As the Council had not sent the final EHCP and because of the lack of clarity on funding arrangements, Mrs X made a complaint at the end of May 2021. Three weeks later, still with no response from the Council, Mrs X complained again.
21. A few days after the second complaint the Council provided Mrs X with the response to her first complaint, considering it at Stage 1. It explained the Special Educational Needs Inclusion Fund (SENIF) was granted to A to cover the cost of her CSW but the fund was not enough to cover the total cost of the provision.
22. Following several emails, at the beginning of July 2021 Mrs X filed a further formal complaint.
23. On 20 July 2021 the Council issued A’s final EHCP, but still failed to provide clarity regarding funding for A’s CSW.
24. During August and September Mrs X and A’s nursery continued contacting the Council asking for the clarity on the funding rates for A’s support worker, without which the nursery could not start the CSW recruitment. In late September, after communication with the Council’s Director of Children Services, the Council confirmed agreed rate of funding for A’s CSW.
25. A week later Mrs X received the Council’s response to her Stage 2 complaint with apologies for the delay but no explanation of the role of health colleagues in the process leading to issuing A’s EHCP and arranging her special educational provisions (SEP).
26. Once the Council confirmed the funding rates, A’s nursery started the CSW recruitment. In the middle of November the nursery identified the right candidate for the position of A’s CSW and A’s CSW started working with her at the end of January 2022.

EHCP content and support at nursery

27. A has a profound hearing loss. The Council found out that to meet her SEN she needs support from a CSW qualified in British Sign Language (BSL) to a minimum of Level two.
28. Even before the Council issued A’s final EHCP, she received most of her SEP in her nursery apart from the CSW support.
29. A has been attending nursery three days a week for 52 weeks a year.

Analysis

Delay with Educational Psychology advice and lack of consideration for an informal consultation replacing an EP assessment

30. The Council was not at fault by not complying with Mrs X’s request to replace an EP assessment with the informal consultation. Getting a formal EP advice which follows the assessment is a statutory duty of the council and cannot be abandoned.
31. The Council’s failure to explain this matter to Mrs X is part of the Council’s failure to have regular and meaningful communication with the parents, and is dealt with under paragraphs 47 and 48.
32. Although the EP filed her advice late, I do not consider this delay would have caused injustice to Mrs X and her daughter. The EHCP issuing date, rather than the dates of any professional advice informing the content of A’s EHCP, triggered the Council’s duty to provide SEP and as such should be referred to.
33. The draft EHCP was issued 17 days after it was due under the SEND Regulations and 19 days after the EP filed her advice. Therefore we consider the delay in preparation of the EP advice did not significantly impact the EHCP timescales.

Telling Mrs X of a funding agreement for A’s CSW and involving health colleagues in funding discussions

34. The Council is not at fault for not advising Mrs X on the funding agreement details and the reasons or the content of any discussions with health colleagues. Parents should not be involved in any discussions as ultimately the responsibility for delivering SEP included in Section F of the EHCPs rests with councils.
35. The Council’s communication with Mrs X about this issue was confused and testifies to the lack of understanding of the Council’s statutory duty to deliver SEP however I consider it was the delay in issuing A’s EHCP and arranging delivery of SEP rather than telling Mrs X of the funding details and any discussions which caused her and her daughter injustice.
36. The Council’s failings within the communication with Mrs X are dealt with under paragraphs 47 and 48.

Delay in issuing A’s EHCP

37. Under the SEND Regulations A’s final EHCP should have been issued at the end of March 2021.
38. In fact, around this time the Council issued a draft EHCP, followed by A’s parents request to hold a meeting to discuss the content. The Easter break and absence of a key member of staff supporting A caused delay in arranging this meeting.
39. Although we cannot hold the Council directly responsible for the delay in the meeting, issuing A’s draft EHCP was already late at this stage. If the Council had complied with the statutory timescales and issued A’s draft EHCP mid-March, this delay might have been avoided.
40. A few days after the meeting and four weeks after the due date for issuing a final EHCP under the statutory timescales, the Council issued an agreed draft version of A’s EHCP.
41. It seems there were no justifiable reasons for any further delay with issuing A’s final EHCP. When communicating with Mrs X the Council told her of the complex funding issues relating to A’s CSW support and the need for discussions with health colleagues. No such reasons should have delayed issuing A’s EHCP.
42. At the end of April 2021 the Council and the parents, based on professional advice and advice from A’s nursery, reached an agreement on A’s SEN and provisions needed to meet them. Once the content was agreed the EHCP should have been finalised.
43. I consider the Council was at fault for the delay in issuing a final EHCP for A from the end of March 2021 till the second part of July 2021 – nearly four months in total.

Delay in arranging support from the CSW

44. Once the Council issues a final EHCP, it is its absolute duty to deliver the SEP included in Section F. This duty, as confirmed by courts, is not conditional on any funding issues. The Council’s delay in arranging SEP for A is fault.
45. All the evidence, including Mrs X’s explanation during our telephone conversation, confirmed A’s requirement for the CSW to support her in the nursery was the main trigger for the EHC process. At this stage of A’s education the Council agreed the support from a specialist in the BSL was essential to ensure A’s development and access to education.
46. When considering the delay I found out that once the Council confirmed funding rates for A’s CSW in the second part of September 2021, it took further four months to recruit the CSW and for them to start working with A.
47. If the Council confirmed the funding rates for A’s CSW directly after issuing her final EHCP within the statutory timescales, on the balance of probabilities the nursery would have been able to start the recruitment in the beginning of April 2021 and the CSW should therefore have been available by the beginning of August 2021.
48. The Council’s fault in holding off arrangements for A’s CSW support until it clarified the funding sources, meant further two months delay.

The Council’s communication with the parents throughout the EHC process

49. The Council’s failed to communicate with Mrs X properly throughout the EHC process. It specifically failed to:
• provide her with reliable advice;
• explain reasons for the delays; and
• respond to Mrs X’s queries.
50. Mrs X experienced distress and frustration caused by the lack of satisfactory support and advice from the Council. She could not get clarifications she asked for and was feeling increasingly anxious about delays to set up support for her daughter.

Complaint handling

51. Following the Council’s complaints handling policy, within three working days the Council should acknowledge a new complaint and respond to it within 20 working days. If the complaint raises complex issues the Council should tell the complainant of the progress at four-weekly intervals.
52. It took the Council almost 11 weeks to reply to Mrs X’s Stage 2 complaint. The Council failed to tell Mrs X of the progress of her case and significantly exceeded the acceptable timescales. This is fault which caused Mrs X distress.

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Agreed action

53. To remedy the injustice caused by the faults identified, we recommend the Council completes the following:
• Apologise to Mrs X for the injustice caused to her and A by the faults identified.
• Pay Mrs X £300 a month to recognise A’s loss of special educational provision caused by the delays identified. There were delays of six months. The total the Council should pay is £1,800.
• Pay Mrs X £300 to recognise the distress caused to her by the faults identified.
• Remind relevant staff of the Council’s duty to deliver SEP which are included in Section F of children’s and young people’s EHCP.

The Council should complete the above within four weeks of the final decision.

54. We also recommend the Council reviews its processes with Health and SENIF to ensure the funding arrangements do not impact on the EHCP timescales and delivery of SEP.

The Council should complete the above within three months of the final decision.

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Final decision

55. We find the Council at fault for the delay in completing the EHCP and delivering SEP to Mrs X’s daughter. This caused her and her daughter injustice. We also find fault in the way the Council communicated with Mrs X and how it handled her complaint. The Council has accepted our recommendations.

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Investigator's decision on behalf of the Ombudsman