• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: The complainant (Mr X) said the Council delayed issuing an Education Health and Care Plan (EHCP) for his son (Y). Mr X also complained about the Council’s communication with the parents and lack of effective liaison after issuing a draft EHCP. We find fault with the way the Council acted when issuing an EHCP for Y. The Council agreed to apologise to Y and Mr X, to make a payment to recognise the loss of special educational provisions caused by the delays and to make service improvements.

The complaint

1. Mr X complains about:
   • Significant delays with issuing an EHCP for Y;
   • Council’s communication with the parents throughout the process;
   • Council’s failure to effectively liaise with the parents about the content of Y’s proposed EHCP through discussions and meetings;
2. Mr X says the Council’s failings caused Y injustice by delaying support necessary for him. Lack of sufficient support and uncertainty, in Mr X’s view, contributed to the deterioration in Y’s mental health and well-being. Mr X also says the Council’s alleged failings affected his and his wife’s mental health.

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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 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

5. I considered the information Mr X provided and discussed this complaint with him.
6. I made enquiries with the Council and considered the information it provided.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before I made the final decision.
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Legal and administrative background

9. 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 Special Educational Needs and Disabilities Regulations 2014 (the Regulations). 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.

(The Code 9.47)

10. The local authority must notify the child’s parent whether it decided to conduct an EHC needs assessment within six weeks from the date of receiving a request for an assessment. (Special Educational Needs and Disability Regulations 2014 R.5 (1)(a))
11. Local authorities must consult the child and the child’s parent or the young person throughout the process of assessment and productions of an EHC plan. They should also involve the child as far as possible in this process. (The Code 9.21)
12. Local authorities should support and encourage the involvement of children, young people and parents or carers by:

• Providing them with access to the relevant information in accessible formats
• Giving them time to prepare for discussions and meetings, and
• Dedicating time in discussions and meetings to hear their views.

(The Code 9.24)

13. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

Key facts

Background

14. Y has ASD, Developmental Coordination Disorder, Dyslexia (diagnosed by a private EP) and sleep difficulties. He attends Year 11 in a mainstream secondary Academy.

EHCP

15. In the last week of March 2021 Mr X’s solicitor sent to the Council a request for an EHC needs assessment for Y. The solicitor attached several reports describing Y’s difficulties in various areas of need and the evidence of his lack of academic progress. The parents recognised the school had recently put in place some interventions to support Y but, they thought, it was too late to sufficiently support his academic and personal progress.
16. After nearly two weeks the Council acknowledged receipt of the EHC needs assessment request and set up timescales for the Council’s response. The Council calculated six weeks from the date of its acknowledgement as the deadline for providing its decision on the assessment.
17. The Council told the parents its decision to carry out Y’s EHC needs assessment on the date of its deadline for its response. The Council set up further dates for the EHCP process again calculating them from the date of its acknowledgement of the parental request for an assessment. In line with these calculations Y’s final EHCP should have been issued in the last week of August 2021.
18. On the same day as it contacted Y’s parents the Council sent a request for educational, health and social care advice. The Council expected all the advice to be received by the end of June 2021.
19. In late July Mr X complained about delays. When responding to this correspondence Special Needs Team Manager explained the delay was caused by the difficulties in getting Educational Psychology (EP) advice.
20. In the second week of October the EP who assessed Y prepared her report for Y’s EHCP.
21. At the end of October Mr X several times contacted the Council, communicating his increasing frustration with the delays and lack of communication. Mr X also told the Council of Y’s difficulties at school, which had not been addressed. Mr X sent the Council forms filled in by Y and himself, which were required for Section A of Y’s plan.
22. The Council decided to issue an EHCP for Y in the beginning of November, two days later sending Mr X this decision and the first draft of an EHCP.
23. In the fourth week of November Mr X responded to the draft with some concerns and asked for a meeting to discuss possible amendments. The Council did not respond to this letter.
24. Mr X followed his letter with a telephone call and a formal complaint. In the beginning of December Special Educational Needs and Disabilities Information Advice and Support Service (SENDIASS) contacted the Council on behalf of Mr X expressing once again his concerns about the lack of specificity in Y’s EHCP and delays with issuing a final EHCP.
25. Not to deprive Mr X of his appeal rights, the Council agreed to issue a final EHCP for Y at the beginning of December 2021. The Council understood Y’s parents were not happy with the content of Y’s EHCP and agreed to continue liaison to resolve any differences without the need for Mr X to appeal.
26. Throughout December 2021 and January 2022 the Council and Mr X exchanged communications about the content of Y’s EHCP, which culminated with a mediation meeting in the beginning of February.
27. The Council issued Y’s final amended EHCP with the changes agreed at the mediation in the first week of March.

Complaint

28. At the end of November 2021 Mr X complained to the Director of Children Services. He said the Council failed by:
    • Not sending him a draft EHCP before the Panel considered whether to issue an EHCP for Y;
    • Not responding to his letter following receipt of Y’s draft EHCP in which he asked for a meeting to discuss any amendments;
    • Refusing to change Y’s Special Educational Needs and Disabilities (SEND) case officer;
    • Exceeding timescales for the EHCP issuing.
29. Mr X asked for the Council to issue a final EHCP within the next five days.
30. In its stage one response the Council explained:
    • The delays were caused by the shortages within the EP service and the high demand for EHC needs assessments. The Council was working hard to minimise delays, actively seeking to recruit extra EPs and working with other EP providers;
    • Although the Council did not share a draft EHCP with Mr X before it decided to issue an EHCP for Y, when making this decision all the evidence was considered;
    • Having accepted it had failed to respond to Mr X’s letter with comments to Y’s draft EHCP, the Council provided details of its actions to put right not involving parents in the EHCP drafting;
    • The Council refused to change Y’s SEND Lead Officer as, it said, it was not its usual practice when a workable solution could be found.
31. Not satisfied with the Council’s response, in the second week of February Mr X asked for the Council to consider his complaint at the next stage.
32. Responding in the first week of March the Council mostly quoted its stage one response. The Council changed, however, its initial position and assigned a different SEND Lead Officer for Y, mentioning this could change in the near future. The Council did not uphold Mr X’s complaint, deciding there was no evidence to support Mr X’s claim of maladministration as the availability of professionals falls outside the Council’s control.

Analysis

EHCP process

33. The Council failed in several ways in the process of issuing an EHCP for Y. Some of its faults caused injustice to Y and his parents:
    • Delay of 36 weeks when issuing a final EHCP for Y.
      1. This is a significant delay, which happened despite regular prompts from Mr X and his representative as well as notices of Y’s continuing difficulties at school affecting his health and well-being.
      2. The Council’s consistent claim the delays were outside its control, as caused by the number of the EHC needs assessment requests which could not be processed by the existing EP service, does not change the statutory requirement of complying with the 20-week timescale for issuing an EHCP. The delay in receiving professional advice during an EHC needs assessment is not among the exceptions to these timescales allowed by the Regulations.
      3. The Council has not provided any evidence it tried to get an EP Statutory Advice for Y outside the EP service, which had been struggling to meet the deadlines. Even if persuaded the Council made every possible effort to obtain an EP Statutory Advice in a timely manner, the objective fact of missing EHCP timescales would have to be seen as service failure, as explained under paragraph 14 of this decision.
      4. Analysis of the Council’s EHCP data in the last few years shows a significant decline in the number of new EHCPs issued within 20 weeks. Looking at the figures this cannot be explained by the increase in the number of requests for assessments:
         1. In 2018 – with 582 EHC needs assessments completed, out of 389 new EHCPs, 91.1% were issued within 20 weeks;
         2. In 2019 – with 643 EHC needs assessments completed, out of 384 new EHCPs, 84.8% were issued within 20 weeks;
         3. In 2020 – with 486 EHC needs assessments completed, out of 452 new EHCPs, 56.6% were issued within 20 weeks;
         4. In 2021 – with 472 EHC needs assessments completed, out of 428 new EHCPs, 25.5% were issued within 20 weeks.
    • Lack of engagement with the parents in the period from issuing a draft EHCP and a final EHCP in the beginning of December 2021.
      1. Young people’s and their parents’ participation in preparing their EHCPs was one of the main principles when the new SEND framework was introduced in 2014. With an already significantly delayed plan, the Council should have quickly and effectively engage with the parents once they communicated their concerns about the content of the draft EHCP;
      2. Issuing a final EHCP with the intention of continued liaison with the parents about its content, further delayed by 13 weeks putting in place the right support for Y. I recognise the Council had, at this point, valid reasons for issuing Y’s final EHCP as it prioritised ensuring Mr X has appeal rights in case an agreement could not be reached on the content of Y’s EHCP. This, however, was the result of the Council’s failures earlier in the EHCP process.
34. Through my investigation I also found the Council was at fault by calculating EHCP timescales from the date of the Council’s acknowledgement of an EHC needs assessment request for Y rather than from the date of the request. As it was 13 days difference I do not think, however, it would have caused significant injustice to Y and his parents, if not for other delays.
35. I do not find fault with the Council for:
    • Failure to send Mr X his son’s draft EHCP before the Council agreed to issue an EHCP as this is not required by the law;
    • Non-compliance with Mr X’s request for a change of a SEND Case Officer. Rather than removing members of staff from the case, the Council should be addressing any potential failings within their work.

Injustice

36. The Council’s faults listed in a paragraph 33 of this decision caused injustice to Y and Mr X.
37. Injustice caused to Y:
    • Distress;
    • Increased difficulties at school;
    • Uncertainty about the level of educational support available;
    • Impact on his academic progress and mental health.
38. This negative impact of the delays within the EHCP processes was to some extent mitigated by the interventions introduced by Y’s school shortly before Mr X’s solicitor submitted a request for an EHC needs assessment.
39. Injustice caused to Mr X:
    • Prolonged distress and frustration;
    • Time and trouble of complaining to the Council and chasing up its actions;
    • Impact of Y’s unaddressed difficulties at school on Mr X’s mental health and work life.

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Agreed action

40. To remedy the injustice caused by the faults identified, we recommend the Council within four weeks of the final decision completes the following:
    • Apologise to Y and Mr X for the injustice caused to them by the faults identified;
    • Pay Mr X £1,250 to recognise Y’s loss of special educational provisions - £250 a month for five months;
    • Pay Mr X £300 to recognise the distress caused to him by the faults identified.
41. We also recommend the Council within three months of the final decision completes the following:
    • Produce an action plan for how it is going to deal with all new Education and Health Care needs assessments and the backlog of the overdue assessments to ensure their timely completion, considering challenges within the Educational Psychology service;
    • Provide all front-line Special Educational Needs staff with a training on:
      1. The Education, Health and Care Plan timescales with particular consideration to the starting date of the process;
      2. Importance of timely communication with parents and young people as well as allowing enough time for effective liaison before the final Education, Health and Care Plan is issued.

The Council will send us evidence of the staff having received this training.

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Final decision

42. I uphold Mr X’s complaint as I found fault in the way the Council acted when issuing an Education, Health and Care Plan for Y. There were delays and failings to communicate with Mr X effectively. The Council’s faults caused injustice to Y and Mr X. The Council has accepted my recommendations for remedies and this investigation is now complete.

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Investigator's decision on behalf of the Ombudsman

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