Summary: Mrs B complained the Council delayed in issuing an Education, Health and Care Plan (EHCP) for her daughter. We did not uphold the complaint, finding no fault in the time taken by the Council to issue the EHCP.

The complaint

1. I have called the complainant ‘Mrs B’. She complains the Council delayed in issuing an Education, Health and Care Plan (EHCP) for her daughter, ‘C’, who has special educational needs.
2. Mrs B says this meant there was a delay before she could appeal the content of the EHCP. And that but for that delay the Council would have been obliged to pay boarding costs sooner for C’s current education placement. Mrs B says she incurred these costs for C’s education instead.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter complained about. (Local Government Act 1974, section 26(6), as amended)
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)

Back to top

How I considered this complaint

6. Before issuing this decision statement I considered:

• Mrs B’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence between Mrs B and the Council about the matters covered by this complaint which pre-dated this investigation;
• information provided by the Council in reply to my written enquiries;
• any relevant law or guidance as referred to below.

7. I also gave Mrs B and the Council an opportunity to comment on a draft version of this decision statement. I took account of any comments they made, or further evidence provided, before issuing this final decision statement

Back to top

What I found

Key law and guidance - EHCP assessments and appeals

8. Statutory guidance contained in the ‘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 EHCPs. The guidance takes account of the Children and Families Act and SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must decide 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”. The Council should complete all steps needed as soon as practicable;
• the whole process from the point the Council receives a request for an assessment until it issues the final EHC Plan must usually take no more than 20 weeks.

9. However, the Special Educational Needs and Disability Regulations 2014 provide an exception to the timescale set out in the final bullet point above. They say that where a SEND Tribunal has directed a council to undertake an assessment then it must do so “as soon as practicable and in any event within 14 weeks” of the Tribunal order. This would apply to cases where a council has agreed to assess following a parental appeal and the SEND Tribunal has issued a consent order stating this.
10. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Chronology of key events

11. Mrs B first requested an ECHP for C on 28 February 2021.
12. On 9 April 2021 the Council declined the request. It told me this was because there was no supporting evidence from the school C attended at that time, that she needed an ECHP.
13. On 28 April the Council says Mrs B requested advice on what she could do next. The Council suggested what further information it might need to agree the request and on 6 May it received more information.
14. The Council considered this further information and on 10 June 2021 agreed it would now assess C for an EHCP.
15. On 19 August the Council issued a draft EHCP for comments. It began consultation with Mrs B’s preferred school for C, located in another council area.
16. On 17 September 2021 the Council issued a final EHCP for C. It named Mrs B’s preferred school. However, it said this placement was conditional on Mrs B providing funding for C’s transport and boarding at the school (it is too far away for C to commute daily). By now Ms B had enrolled C at the school, which she attended as a boarder, with fees paid by Mrs B.
17. Mrs B wanted changes to the EHCP. The Council issued an amended EHCP on 8 December 2021. The EHCP continued to say that Mrs B must fund C’s transport and boarding.
18. Mrs B appealed the content of the EHCP. On 15 June 2022 the SEND Tribunal heard the appeal. It recorded that both sides had agreed the Council would now fund C’s boarding at the school. So, both parties settled the appeal by consent. The Tribunal commented that it had no power to make an order requiring the Council to meet any backdated boarding fees, met by Mrs B.
19. The Council and Mrs B corresponded separately about backdating fees and the Council agreed to pay them from April 2022 – the start of the summer term. This means Mrs B did not receive recompense for boarding fees paid over the preceding two terms.

Findings

20. I consider I only have the legal power to consider the Council’s actions in this case between 28 February and 17 September 2021. As I explained above, where a parent has a right of appeal to the SEND Tribunal, and the matter complained about to the Ombudsman is inextricably linked to matters that have been (or were capable of) appeal – then we lose power to investigate that matter.
21. I find Mrs B had appeal rights from 17 September 2021. From then she could appeal to the SEND Tribunal to challenge the Council’s refusal to pay C’s boarding fees.
22. However, the SEND Tribunal could never order a backdating of boarding fees. So, it is legitimate for us to investigate if there was any delay leading to the issue of the final EHCP in September 2021. This is because a delay here could have impacted on the date of the appeal and when both parties reached agreement over payment of boarding fees.
23. I have decided the evidence does not support the view the Council was at fault here. The Council has 20 weeks to complete an EHCP from the date it receives a request for an assessment, where it agrees to undertake such an assessment.
24. I consider the critical date for calculating 20 weeks in this case is not 28 February, when Mrs B first asked the Council to assess C for an EHCP, but 6 May 2021. This later date is when Mrs B presented additional information that led the Council to agree to assess C’s needs. In which case the issue of a final EHCP on 17 September was within the 20-week deadline.
25. I say this because the evidence does not suggest Mrs B appealed the refusal of her first request on 9 April 2021 (a decision that was within the six-week statutory deadline). But instead invited a reconsideration of the case having provided new evidence, received on 6 May 2021.
26. The alternative approach would be to view the 10 June 2021 date as key. As this was the date when the Council averted any appeal by Mrs B about its initial refusal to assess C for an EHCP by agreeing to that request. In which case, based on the approach adopted when such cases go to the SEND Tribunal, the Council had 14 weeks to then issue a final EHCP.
27. Using this alternative approach, the Council missed the deadline for issue of the EHCP, but only by one day. That is not something I consider could cause a significant injustice to Mrs B or C.
28. So, whichever approach I take, the Council was not at fault for the timing of the issue of C’s final EHCP.
29. Finally, I have noted that Mrs B chose not to appeal the final EHCP issued on 17 September, but the amended version issued around nine weeks later. I consider we do not have legal power to investigate what happened after 17 September. But it is possible fault by the Council may have contributed to Mrs B not knowing or being unable to exercise her appeal rights sooner – although I have no reason to say it did.
30. But if there was such evidence it would not impact my findings. This is because the Council agreed to backdate C’s boarding fees by around ten weeks, even though the SEND Tribunal could not make any ruling on this. I could not recommend anything more, as the payment of these fees would be Mrs B’s injustice arising from any fault that caused her to delay her appeal.

Back to top

Final decision

31. For reasons set out above I have completed my investigation finding no fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman