Summary: Mrs X complained the Council delayed issuing an Education, Health and Care Plan for her son. She says the Council’s actions caused avoidable stress and anxiety to her and left her son struggling at school. We found fault by the Council. The Council agreed to apologise to Mrs X and provide a financial remedy to recognise the injustice caused.

The complaint

1. Mrs X complains the Council delayed issuing an Education, Health and Care Plan for her son. She says the Council’s actions caused avoidable stress and anxiety to her and left her son struggling at school. Mrs X would like the Council to adhere to the statutory timescales so that other families are not similarly affected.

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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. 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)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. 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)
6. 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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How I considered this complaint

7. I discussed the complaint with Mrs X and considered the information she provided. I also considered the information provided by the Council.
8. I considered the comments provided by Mrs X and the Council in response to a previous draft of this decision.
9. Mrs X and the Council have had the opportunity to comment on an amended draft decision. I have considered their comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plans

10. 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 tribunal can do this.
11. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent, or a final EHC Plan has been issued.
12. 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, and
• 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).

The Council’s complaints procedure

13. The Council’s formal complaints procedure has three stages. At stage one, the service standard for responding to a complaint is to send an acknowledgement within five working days, and a full response within a further 15 working days from the date the complaint was acknowledged.
14. The stage two and stage three complaint response timescales are 25 working days. If the Council considers there appears to be no merit in a further investigation at a higher stage of the complaints process, it will direct the complainant to us if they remain dissatisfied.

What happened

15. This chronology includes key events in this case and does not provide details of everything that happened. In this report I have not referred to all the information provided by Mrs X and the Council; however, I have not ignored its significance.
16. In September 2021, Mrs X’s son, Child Y, transitioned to junior school. Child Y is awaiting assessment for potential Attention Deficit Hyperactivity Disorder and/or Autistic Spectrum Disorder.
17. In November 2021, Mrs X asked the Council to carry out an EHC needs assessment.
18. The Council replied to Mrs X in the same month and told her it had decided not to carry out a needs assessment for Child Y.
19. Mrs X disagreed with the Council’s decision and arranged to attend a mediation meeting. Mrs X says a date was set in February 2022 for mediation to take place.
20. Mrs X says Child Y’s school commissioned an assessment for him. The assessment took place in January 2022.
21. Mrs X says she provided the mediation coordinator with the results of the assessment later that same month.
22. On 4 February 2022, the Council told Mrs X it had changed its decision and agreed to carry out an EHC needs assessment for Child Y.
23. Mrs X says she emailed the Council on 26 March 2022 to ask for an update. She says the Council replied on 4 April 2022 and told her it was waiting for an Educational Psychologist (EP) to carry out an assessment.
24. Mrs X says the EP carried out their assessment on 25 July 2022. The Council says it received the EP’s advice on 28 July 2022.
25. On 4 August 2022, the Council told Mrs X of its decision to issue an EHC Plan for Child Y.
26. Mrs X asked the Council for an update on 17 August 2022. She said she had started the process in February 2022 and the statutory 20-week timescale had expired.
27. On 23 August 2022, the Council replied to Mrs X’s email. It apologised for the delay and said it had experienced a significant rise in requests for EHC needs assessments, which had resulted in a backlog. It said it had identified additional resources and said it hoped this would help it to catch up.

Mrs X’s complaint

28. Mrs X submitted a formal complaint to the Council on 23 August 2022. She said the regulations required the Council to issue a finalised EHC Plan within 20 weeks of her request, but she had not yet received a draft plan.
29. Mrs X and the Council continued to correspond by email about the EHC Plan. The Council apologised again for the delay in issuing the draft plan and said it was addressing the oldest cases first due to the backlog.
30. Mrs X asked the Council to escalate her complaint to stage two on 21 September 2022 as she said she had not received a response to her stage one complaint.
31. The Council provided its complaint response on 22 September 2022. It apologised for the delay and maintained it was facing a significant rise in the number of requests for EHC needs assessments. The Council said it was doing what it could to prioritise children against the available resources and acknowledged Mrs X's frustration regarding the delay. It said it would endeavour to issue a plan in the autumn term following receipt of an Occupational Therapist’s assessment, which it expected to take place in October 2022. The Council said in the meantime, Child Y’s school could seek support and guidance by contacting the Inclusion and SEND Team regarding any adjustments they may need.
32. Mrs X asked the Council to escalate her complaint to stage three on the same day as she was not satisfied with the complaint response. Mrs X also sent a separate email to the Council. She acknowledged the backlog but said Child Y had been waiting for months for his plan, and that this was having a knock-on effect on his learning. Mrs X said Child Y often did not want to go to school and without the EHC Plan, the school was unaware of his exact needs.
33. The Council replied to Mrs X on 17 October 2022. It said it was aware a plan writer had been tasked to write Child Y’s plan, and said it was endeavouring to issue this within four to six weeks. The Council said it fully recognised the delay was unacceptable and had caused upset and uncertainty. It said it sincerely apologised but considered further investigation would not lead to a different outcome. The Council told Mrs X she could bring her complaint to us.
34. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.

What happened next

35. The Council issued the draft EHC Plan on 25 November 2022. It issued the final EHC Plan on 9 January 2023.

Analysis – delays in the EHC Plan process

36. It is clear from the information reviewed, and the Council acknowledges in its complaint response to Mrs X, there is delay in issuing Child Y’s EHC Plan. Once the Council agreed to assess Child Y’s needs, it should have issued the final EHC Plan by late-June 2022. However, it did not issue the final EHC Plan until January 2023. This is significantly outside the statutory 20-week timeframe.
37. I acknowledge the Council’s reasons for the delay. However, the Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. Therefore, the Council’s failure to adhere to the statutory timeframe is fault. 

The Council’s complaint handling

38. The evidence also indicates fault in the Council’s handling of Mrs X’s complaint. Mrs X submitted complaints on 23 August, 21 September, and 22 September 2022. The only substantive complaint response from the Council is dated 22 September 2022. The subsequent response sent on 17 October 2022 said the Council would not consider the complaint further.
39. I have seen email correspondence from the Council in which the delay was discussed. However, these were in response to Mrs X’s ongoing queries about the EHC Plan rather than an explicit complaint response. The only correspondence from the Council which specifically addresses Mrs X’s complaint are the emails dated 22 September 2022 and 17 October 2022.
40. The Council says it considered Mrs X’s complaints dated 23 August 2022 and 21 September 2022 at stage one and responded to both emails in its response dated 22 September 2022. The Council told Mrs X on 17 October 2022 it felt further investigation of her complaint would not lead to a different outcome, and signposted Mrs X to us.
41. The Council’s complaints policy advises that when it has “fully investigated a complaint, and there appears to be no merit in a further investigation at a higher stage of the complaints process, the complainant will be advised that they can refer their complaint to the [Ombudsman] if they remain dissatisfied with the outcome”.
42. The Council is not at fault for its decision to take no further investigative action. This is because the Council’s complaints policy says it may decide not to investigate complaints further if there appears to be no merit in a further investigation.
43. However, the Council acknowledges its response to Mrs X’s stage one complaint was late. The Council also acknowledges it would have been helpful to clarify it had considered Mrs X’s complaint at stage one in its response dated 22 September 2022.
44. I acknowledge the Council’s comments and consider its complaints correspondence did not clearly explain to Mrs X at which stage of the process it had considered her complaint. In addition, the Council acknowledges its complaint response at stage one was delayed. This is fault.

Injustice to Mrs X and Child Y

45. The period for which we can consider the injustice to Mrs X and Child Y is limited. The courts have said where a complainant has appealed to the tribunal, we cannot investigate a council’s decision relating to the provision of alternative education pending the appeal, nor seek a remedy for the council’s failures. The law also says we cannot normally investigate a complaint when someone can appeal to a tribunal.
46. Mrs X was able to appeal to the tribunal once the final EHC Plan was issued on 9 January 2023. Therefore, the period of injustice which can be considered is 24 June 2022 (the date by which the Council should have issued the EHC Plan following its decision to assess Child Y on 4 February 2022) to 9 January 2023.
47. The injustice to Mrs X is the stress and uncertainty caused by the Council’s delay in issuing the EHC Plan. The delay in issuing the final EHC Plan also delayed Mrs X’s ability to exercise her right of appeal to the SEND tribunal should she choose to do so. The Council’s handling of Mrs X’s complaint also incurred avoidable time and trouble to Mrs X.
48. Mrs X says the delay also caused stress to Child Y. She says Child Y’s school was unsure how best to support him in the absence of a finalised EHC Plan, and this contributed to his reluctance to attend, and negatively impacted his ability to learn.
49. It is positive the Council has itself identified the delay in the EHC Plan process and apologised to Mrs X for the delay in issuing the draft plan. It is also positive the Council states it has identified additional resources to address the backlog of assessments. However, this does not adequately address the injustice identified.

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Agreed action

50. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide a further apology to Mrs X and Child Y for the stress and uncertainty caused by the delay in issuing the final EHC Plan;
2. Make a payment of £560 to Mrs X in recognition of the stress and uncertainty caused by the delay;
3. Make a further payment of £100 to Mrs X in recognition of the time and trouble taken in pursuing her complaint;
4. Remind staff of the importance of adhering to the statutory timeframes as set out in the Code, and
5. Remind staff to confirm to complainants the stage at which their complaint has been considered.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have found fault by the Council and the Council has agreed to take the above action to remedy the injustice identified. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman