Summary: Mrs X complained about delays and poor communication after she asked the Council for an Education, Health and Care (EHC) Plan for her child Y. The Council was at fault for delay in issuing the EHC Plan, and for poor communication. The Council has agreed to apologise to Mrs X and pay her £300 to acknowledge the frustration caused. It has already recruited more staff to improve its communication. It has also agreed to review how it communicates the timescales involved to parents and carers to help manage expectations.

The complaint

1. Mrs X complained the Council delayed completing her child’s Education, Health and Care (EHC) Plan. In particular, it failed to clearly explain the process and timescales, failed to keep her updated about progress, failed to seek input from an Occupational Therapist and failed to communicate effectively about changes to her allocated keyworker. In addition, it failed to consider her complaint at stage two of the Council’s complaints’ process. Mrs X said this caused her distress and frustration.

Back to top

The Ombudsman’s role and powers

2. 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)
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)
5. 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.

Back to top

How I considered this complaint

6. I have considered the information provided by Mrs X. I have considered the Council’s response to our enquiries.
7. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

Back to top

What I found

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND tribunal can do this.
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 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.
10. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

What happened

11. In September 2021 Y attended nursery. Y received one to one support, funded by the nursery which applied to the Council for additional funding. Mrs X says the nursery would only provide 6 hours of provision at a ratio of 2:1.
12. In October 2021 Mrs X sought to change nursery settings and the Council transferred Y's funding. However, the new setting was understaffed and failed to employ someone to support Y, so Y stopped attending in November 2021.
13. In November 2021 Mrs X commissioned private autism and neurological assessments which confirmed Y had autism.
14. In mid-December 2021 Mrs X requested an EHC Plan for Y. Mrs X received confirmation in early January 2022 that Y would be assessed for an EHC Plan. The letter gave the name of Y’s keyworker but did not set out any timescales of the assessment. Mrs X emailed the keyworker and tried telephoning several times in early February and did not receive a response.
15. In early March she contacted the Council again. Mrs X says she tried the keyworker and the SEN team number published on the website and followed this up with an email. The Council says the keyworker called Mrs X back and left a message but Mrs X has no record of this.
16. Mrs X complained to the Council about the lack of communication and the failure to contact her or health professionals regarding the EHC Plan. Following this the plan writer emailed Mrs X apologising for the lack of contact. They sought to collect Mrs X’s views for the EHC Plan which Mrs X provided that day. The Council advised Mrs X the keyworker was leaving the service. Mrs X was given the name of a new keyworker but they left a month later.
17. Mrs X tried contacting the plan writer in late March and asked if she could receive support to find somewhere Y could attend in the meantime. Mrs X received an out of office message in response.
18. The Council responded to Mrs X’s complaint In April 2022. It acknowledged it sent a request for health information to the wrong health body and there were delays with the Psychology Service due to high levels of demand. It said it had now contacted the correct health body for information and an educational psychology report had been completed.
19. Mrs X contacted the Council as she was dissatisfied with the complaint response. Mrs X said she received no support or assistance to find a new nursery place for Y and was told the only option was to apply for an EHC Plan. Mrs X said she wanted the SEN team to commit to improving its communications and suggested that a letter be sent out detailing the EHC Plan process and the timescales involved.
20. Mrs X contacted the Council in late April requesting an update. The Council advised Mrs X of the names of a new keyworker and plan writer. Mrs X emailed the plan writer in late April 2022 to request an update on the progress of the Plan. The officer responded that they were drafting it but had only been in post a short time.
21. In mid-May 2022 the Council sent Mrs X the draft EHC Plan. Mrs X says Y’s name was misspelt. It only listed 15 hours of support, yet her child was approaching four years old and should be entitled to 30 hours and there was no occupational therapy assessment carried out.
22. Mrs X emailed her keyworker to arrange to discuss the draft. Mrs X had 15 days to respond to the draft plan, but her keyworker was on leave for two weeks. Mrs X also emailed the Council in mid-May asking about the progress of her complaint. She said she had responded to the stage one in April asking to proceed to stage two of the complaints process but had not had a response.
23. Mrs X’s keyworker responded in late May that they would check the allocated hours. Mrs X advised the Council she had secured a place for Y at a special educational needs nursery that had a space from September.
24. The Council issued the proposed amended plan to Mrs X on 31 May 2022. Mrs X says the plan did not set out the hours Y was to attend or name the placement and her name was spelt wrong. On 1 June Mrs X contacted the Council and advised the plan stated 12-15 hours and made no mention of an OT assessment. She said she was told this would be included in the plan. Mrs X says the plan was finalised in mid-June without her changes. The plan named a special needs nursery as the placement from September 2022. It stated Y was assessed for 12 to 15 hours of provision
25. The Council responded in June 2022 and told Mrs X the information regarding an OT assessment was in the final plan in section G. It advised the Council was discussing the allocated hours. It apologised for gaps in communication and for the turnover of staff. In late June 2021 Y was allocated a new keyworker.
26. On 6 July the Council issued Y’s updated final plan which included 30 hours of provision. Mrs X did not appeal the plan. They have since moved house so a review will be held with a team from a different council.
27. Since September 2022, Y has attended a special educational needs nursery.
28. In response to our enquiries the Council said it decided to write further to Mrs X following her request to go to stage two of the complaints process, setting out how the service was making improvements rather than carry out a stage two investigation. It accepted it then did not do this.
29. The Council also confirmed it has now employed two business support officers to triage telephone and email communication on a daily basis to improve the effectiveness of communication with parents and carers of those with special educational needs and disabilities

Findings

30. The Council wrote to Mrs X to confirm it would carry out an EHC assessment within eight weeks of receiving the request for an EHC Plan. This was on time.
31. The letter told Mrs X she would be contacted shortly yet Mrs X received no contact from the Council for over two months and contact was only made after Mrs X chased the Council. This was fault. The Council also sought information from the wrong health body and failed to carry out an OT assessment as part of the process. This was fault.
32. There were several changes to Y’s keyworker and to the plan writer. I cannot say the Council is fault for staff changes it has no control over. However, the Council failed to communicate the changes clearly with Mrs X. It failed to respond to communication and to ensure telephone calls were answered. This was fault. The Council has taken action to address this through employing additional staff. This is appropriate.
33. The Council issued Y’s final plan on 15 June which was five weeks later than it should have. This was fault. Even then the plan did not fully take account of Mrs X’s views. The Council therefore issued an amended version three weeks later.
34. The delays and poor communication caused Mrs X frustration. Mrs X has raised issues regarding the content of the plan. However, I cannot consider this as, if Mrs X disagreed with the plan, it was open to her to use her appeal right to the SEND tribunal.
35. The Council failed to respond to Mrs X’s comments on the stage one investigation of her complaint. When she chased this up in May 2022, specifically referring to a request to go to stage two, it did not respond. The failure to properly respond to Mrs X’s complaint either through further explanation or through a stage two investigation was fault and caused Mrs X additional frustration given that a key element of her complaints was about poor communication.

Back to top

Agreed action

36. Within one month of the final decision the Council has agreed to apologise to Mrs X and pay her £300 to acknowledge the frustration caused by the delays and poor communication.
37. Within two months of the final decision, the Council has agreed to review the letter it sends to parents and carers advising them it will carry out an EHC assessment to ensure the letter clearly sets out the expected timescales for the EHC process, to help manage parents’ expectations around communication.
38. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

39. I have completed my investigation. The Council was at fault, causing injustice which it has agreed to remedy.

Back to top

Investigator's decision on behalf of the Ombudsman