Summary: Mrs X complained the Council failed to properly deal with her application for an EHC plan for her daughter. We found the Council’s initial decision not to carry out an EHC assessment was one it was entitled to make. While the EHC took too long to issue, the impact of this was negated by the Council’s agreement to revisit the assessment without the need for the family to appeal. We found there was fault in respect of a school transport issue and in communication about consultations. We also found some issues with the EHC drafting constituted fault. We recommended a remedy for the impact of these issues.

The complaint

1. Mrs X complains:
• The Council unlawfully refused to carry out an Education and Healthcare needs assessment for her daughter (referred to as Y in this statement). The Council did not apologise or accept it was at fault when it subsequently agreed to an assessment.
• The Council failed to adhere to Statutory Timescales to deal with and issue the EHC plan.
• The first draft of the EHC plan was not fit for purpose. Large amounts of information was missing, reports were not referenced and outcomes were insufficiently detailed. Mrs X complained that she had to do much of the redrafting, along with the school SEN Co-ordinator (SENCO).
• The Council would not agree to name their preferred choice of school and continued to make representations to two unsuitable mainstream schools without any discussion with them or explanation about why. Mrs X stated she had spoken to the SENCOs at both schools and it was apparent they could not meet their daughter’s needs. She complained the Council’s decisions appeared to be financially motivated or it was trying to avoid the need to provide school transport.
• At the outset the Council told her that it would only consider placing her daughter in their preferred school (7 miles away) if they signed a ‘Transport Disclaimer’ stating they would agree to the Council not paying transport costs. This suggested the Council would only consider their preferred choice on this basis rather than properly considering if it was the nearest suitable school that could meet their daughter’s needs.
• Staff were short and unhelpful on the telephone and delayed providing information which caused stress and frustration. The manager of the team failed to respond to calls. Mrs X felt the failure to answer calls and engage with them was because they had challenged the way their case had been dealt with.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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)

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How I considered this complaint

4. I spoke to Mrs X and considered the information she provided. I asked the Council for information and considered its response to the complaint.
5. Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

SEN Code of Practice 2015

6. A child with special educational needs may have an Education, Health and Care (EHC) plan. 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.
7. Section 42 Children and Families Act states councils have a duty to secure the specified special educational provision in an EHC plan for the child or young person. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Timescales and process for EHC assessment

8. 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.
9. Section 9.14 states, in considering whether an EHC needs assessment is necessary, the local authority should consider whether there is evidence that despite the early years provider, school or post-16 institution having taken relevant and purposeful action to identify, assess and meet the special educational needs of the child or young person, the child or young person has not made expected progress. To inform the decision the council will need to take into account a wide range of evidence. It specifies areas the Council should pay particular attention to.
10. Section 9.79 says, if a child’s parent makes a request for a particular school, the local authority must comply with that parental preference unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child.
• the attendance of the child there would be incompatible with the efficient education of others, or the efficient use of resources.
11. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened

Timescales and Decisions

12. Mrs X requested an assessment for an Education and Healthcare Plan (EHC) for Y on 24 February 2021. They enclosed various documents from Y’s school and other professionals in support of the application.
13. On 12 April the Council refused to carry out an assessment. Its letter to Mrs X stated this was because it considered Y was making progress with SEN support, using the resources that were available to mainstream schools. It considered as progress was being made, there was no need to conduct an assessment or progress a specific EHC plan for Y. The six-week timescale to make this decision ended on 7 April 2021, so the decision was slightly late.
14. The SEN Code states, when deciding if an EHC assessment should be carried out, a council should consider factors such as academic attainment, the nature, extent and context of the child’s SEN, the child’s physical, emotional and social development needs and whether progress has only been achieved with support and intervention over and above that which was usually provided.
15. The Council provided a copy of the information Mrs X provided as part of her application. It included assessments, information from the school and correspondence and reports by medical professionals.
16. On 29 April Mrs X wrote setting out why she considered the Council had failed to take account of the SEN Code when reaching its decision. Mrs X stated she intended to lodge an appeal against the decision not to assess Y.
17. On 28 May the Council agreed it would carry out an assessment. It sent requests for information that day and stated information already provided would be taken into account.
18. On 15 July the Council sent a draft EHC plan to Mrs X. This was 20 weeks after her original request, 6 weeks after the council agreed to conduct an EHC assessment.
19. Mrs X responded on 20 July. The school SEN Co-ordinator (SENCO) also sent comments and made alterations which Mrs X endorsed. Two further drafts of the EHC plan were issued on 26 July and 30 July. There was ongoing correspondence between Mrs X and the Council about the content of the EHCP in August and September. The final EHCP was issued on 14 September 2021. This was just under 28 weeks from Mrs X’s original request and 15 weeks after the Council agreed to conduct an EHC assessment.
20. The EHC plan issued on 14 September named a mainstream school.

EHC Plan content and drafts

21. Mrs X considered the content of the EHCP was not fit for purpose and required significant change. She stated she had to do much of the re-drafting of the document. Mrs X shared the initial draft and subsequent versions which I have read. I note the comments she made. Some points were clarifications or amendments. Mrs X also requested that additional content and clarity be added and she made requests for content to be more specific and for provision to be quantified.
22. Mrs X was happier with the overall content of the second draft but still considered changes were needed. Some of the key issues in the later drafts were about outcomes in Section E and provision in Section F being quantified. Four drafts were prepared by the Council prior to the final statement being produced.

School Preferences

23. When the final EHC plan was issued, it named Y’s mainstream primary school.
24. On 12 October 2021 the Council sent Mr and Mrs X a notification that Y’s EHCP would need to be amended to name a secondary school for September 2022. Mrs X noted that some specific provision would need to be taken out of the EHCP (because it was not available at secondary schools) otherwise the EHCP needed no amendment.
25. The same day, 12 October 2021 the Council consulted three secondary schools. The Council told us two of these were parental preferences and one was consulted as it was nearest to Mr and Mrs X’s home (I refer to this as School A). Mrs X says she was not told about the consultation with School A at the time it was made. On 18 October the Council consulted the ASC Hub of one of Mr and Mrs X’s parental preferences. All the schools were consulted on the basis of Band 2 funding to meet Y’s needs.
26. On 18 October the original three schools responded. Two of the three agreed to being named on Y’s EHCP. One was a parental preference school and the other was School A. As at 24 November the Council told Mrs X they awaited a response from the ASC Hub.
27. Mrs X questioned why School A had been consulted. It was not their catchment school or the nearest and she explained why she didn’t consider it would be suitable. She stated they were disappointed this had not been discussed with them. Mrs X also stated they had spoken with the SENCO at School A who had revisited Y’s needs and stated they could not meet her needs. The SENCO told Mrs X their view may be overridden by the Council. Mrs X asked the Council to reconsult that school.
28. School A changed its view and confirmed on 25 November it could not meet Y’s needs.
29. Mrs X discussed the situation with a council officer on 21 January 2022. She was told the Council did not intend to issue further consultations. On Monday 24 January 2022 the Council decided to consult an additional school, School B. It told Mrs X this on 25 January. It noted it had already consulted with the school nearest to Mrs X, but stated School B was an equal distance away. Mrs X told us School B was their catchment school. So, it should have been consulted at the outset.
30. Mrs X complained about the way the EHC plan had been handled on 27 January 2022. She noted concerns about the initial refusal to assess, the time it had taken to deal with and the way consultations had been done and how this had been communicated.
31. Mrs X also asked that a further school was consulted, School C. Mrs X told us School C was the nearest school to their home, so it too should have been consulted at the outset. The Council consulted School C on 31 January and a response was received on 2 February. It could not meet Y’s needs.
32. On 8 February 2022 the Council issued a revised EHC plan to come into effect from September 2022. It named a school that Mrs X was happy to accept. However, Mrs X complained that the Council did not explain why, given a parental preference school had agreed it could meet Y’s needs, the Council had continued to consult other schools. She said the Council had not acted transparently. She complained her request to speak to a manager during this time had been ignored.

Transport Disclaimer

33. On 6 August 2021 in discussion with Mrs X, the Council noted that the parental preference of secondary school was not the nearest mainstream school. It invited Mr and Mrs X to sign a disclaimer agreeing to pay for transport. However, at that time, consultations had not been issued and the responses had not been returned. So, it was not yet clear which schools could meet Y’s needs. The Council told us since this time it has reviewed its transportation practice. It implied it no longer suggested to parents that a transport disclaimer be signed.

Was there fault by the Council

34. The SEN Code says a decision about whether to carry out an EHC assessment should be completed within 6 weeks. The Council decision in this case was only slightly outside this timescale. There was no significant injustice as a result.
35. The Code states a final EHC plan must be issued within 20 weeks of the request to assess. It does not explicitly deal with a situation in which a council first declines to assess, then changes its position. The Code sets out some exemptions. The exemptions do not allow more time to produce an EHC plan if a council first refuses to assess and then changes its position. So, our overall view is that where a council changes its mind on a decision to assess, outside of the appeal process, this should generally be regarded as a continuation of its response to the original request. This means the 20-week timescale would be measured from the original request. In this case, the overall time taken to issue an EHC was 28 weeks from the original request date. This is outside of the required timescale. For the reasons I set out above, this was fault.
36. However, in considering the impact of any failure to meet the required timescales in this situation, we have taken account of the circumstances in which the council’s decision changed. For example, if a council’s original decision to refuse assessment was significantly flawed, then, it follows that any subsequent delay in meeting the timescales was avoidable, and we are more likely to seek a remedy for injustice the delay caused.
37. However, if the Council’s original decision was defensible (albeit one Mrs X disagreed with) and took account of the facts, we would take that into consideration. This is because the council’s reconsideration and agreement to assess, would remove the need (and time taken) in appealing the original decision.
38. I found that the Council’s initial decision, not to agree to an EHC assessment, was a decision it came to after considering the evidence. While I understand that Mrs X disagreed with it and considered the Council was wrong, I do not have grounds to consider the Council’s position was fault. We cannot reach our own view about the merits of the decision.
39. As a result, while it was fault that the timescale was not met, given the circumstances; the Council’s agreement to change its view and the avoidance of the need to appeal, I do not consider it caused significant injustice.

Consultation with Schools

40. There was fault in respect of communication regarding consultations. When Mrs X sought to understand why certain schools were being consulted this was not properly explained. The Council consulted an additional school and did not say why. When Mrs X asked to speak to a manager, this was ignored. This led to Mrs X becoming concerned about the reasons for the Council’s actions and its motivation. Its decisions were not transparent and open. This goes against the SEN Code which requires decisions to be made openly and in collaboration with parents and children. This did cause Mrs X injustice. It created uncertainty and concern about the process being followed.

School Transport Disclaimer

41. The law sets out criteria for when free school transport should be provided. This allows for situations where the nearest suitable school is over three miles from the parents’ home. Also, where a child has Special Educational Needs, disabilities or mobility problems which mean they cannot be reasonably expected to walk to school, free transport may be provided where a school is within three miles of home.
42. A decision about free school transport entitlement should be made once consultation responses have been received by a council. It is then that the Council can decide which is the nearest suitable school. They should apply the law when deciding whether or not free school transport should be provided. Parents should not be asked to sign away the right to free school transport before the nearest suitable school has been determined. Use of transport disclaimers at an early stage may imply that forgoing school transport could affect whether parents successfully achieve their choice of school. It is inappropriate to ask parents to sign away a potential right to free school transport in this way. This was fault and it too caused injustice. I note the Council has since changed practice.

Content of EHC Plans

43. The SEN Code allows for parents to comment and to seek additional content and/or corrections as they consider appropriate. I have reviewed the correspondence between Mrs X and the Council requesting changes to the EHC plan.
44. There is evidence the council took account of some of the comments received. The content of EHC plans is, to an extent, subjective and ultimately, the content of EHC plans can be appealed by parents. However, section 9.69 of the Code says that provision must be specific and quantified. So, while the required level of detail is, to an extent subjective, and some issues were addressed, the failure to quantify the provision from the outset was clearly against the Code. Without quantified support, it is difficult to ensure the correct level of support is provided. The issues with the later drafts of the EHCP could have been avoided had this been addressed at the outset or in response to Mrs X’s original comments. So, Mrs X was avoidably put to additional time and trouble in commenting on versions of the EHC plan.

Unhelpfulness

45. I recognise that Mrs X found that when speaking to staff about Y’s EHCP, they were rude and unhelpful. I have been unable to reach a view on this element of the complaint. No recorded calls exist to allow us to reach a robust finding on this element of the complaint. In the absence of evidence, I cannot reach a view that there was fault in this respect.

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Agreed action

46. The following action should be taken within four weeks of my final decision:
47. To recognise there was an element of distress caused by the Council seeking a “school transport disclaimer” and from the failure to communicate properly about school consultations I recommend the Council pays Mrs X £150.
48. To recognise that Mrs X was to put to avoidable time and trouble because of the issues with the content of the drafts of the EHC plan, I recommend the Council pays her £200.
49. The Council should instruct/train officers not to ask parents to sign transport disclaimers early in the EHC process, before school consultations have established the nearest suitable school. The Council should provide us with evidence it has done this.

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Final decision

50. There was fault by the Council. I have now completed my investigation and closed my file on the basis that the Council has agreed to take the action I recommended.

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Investigator's decision on behalf of the Ombudsman