Summary: Ms X complained about the way the Council handled her son’s education, health and care (EHC) needs. Ms X said this caused confusion, frustration, and delay. We find the Council at fault for delay issuing a final EHC plan after a reassessment. This caused injustice. The has agreed to Council apologise and make a payment to reflect the injustice caused. We do not find the Council at fault for two parts of the complaint. We have not investigated two other parts of the complaint, because they are either premature or outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, who I refer to here as Ms X, complained about the way the Council handled her son’s education, health and care needs. Specifically, she complained that the Council:
1. failed to send her a decision notice after a reassessment of her son’s needs;
2. failed to secure certain provision in her son’s Education, Health and Care plan;
3. removed some provision from the Education, Health and Care plan;
4. delayed issuing the final Education, Health and Care plan after the needs reassessment; and,
5. did not reassess her son’s needs after it agreed to do a reassessment.
2. Ms X said this caused confusion, frustration and delay. She also said it meant her son missed out on provision she thinks he should have received.

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What I have and have not investigated

3. I have investigated parts a, d, and e of this complaint. I will now set out the reasons I have not investigated parts b or c of the complaint.

Part b of the complaint

4. Ms X complained that the Council failed to secure certain provision in her son’s Education, Health and Care plan. Ms X said she became aware in January 2023 that the school had not provided certain special educational provision in the previous school term.
5. Ms X said she told the Council about this in her response to a draft Education, Health and Care (EHC) plan. She said the Council told her to contact the caseworker about any problems with provision.
6. Ms X told me she had not contacted the caseworker about this because she felt she had already told the caseworker through her comments on the draft EHC plan. Ms X said she has had no further contact from the Council about this. Ms X said she had not made a formal complaint about lack of provision.
7. As I set out below, we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. We would not necessarily expect a council to identify a formal complaint within a parent’s response to a draft EHC plan. A council would expect comments on future plans for provision, not complaints about what provision may or may not have been provided in the past.
8. In this case, I consider it is reasonable for Ms X to notify the Council of her complaint about lack of provision and give it an opportunity to investigate and reply.
9. For this reason, I find part b of this complaint is premature. Therefore, I have not investigated it.

Part c of the complaint

10. Ms X complains that the Council removed some provision from the Education, Health and Care (EHC) plan.
11. As I set out below, we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter.
12. In this case, if Ms X does not agree to the content of a final EHC plan, she can appeal to the SEND Tribunal. I consider it would be reasonable to expect Ms X to appeal.
13. For this reason, I find part c of the complaint is outside the Ombudsman’s jurisdiction. Therefore, I have not investigated it.

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The Ombudsman’s role and powers

14. 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)
15. 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)
16. 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)
17. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
18. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
19. 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)
20. 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.
21. 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

22. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
23. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

24. Under the Children and Families Act 2014, when an Education, Health and Care (EHC) needs assessment is completed by a council and it shows a need for special educational provision, the local authority must prepare and maintain an Education, Health and Care (EHC) plan.
25. The government issued the Special Educational Needs and Disability Regulations (‘the Regulations’) in 2014 and the Special Educational Needs and Disability Code of Practice (‘the Code’) in January 2015. The Code provides statutory guidance on the law and the Regulations.
26. The Regulations say a council must decide whether to carry out an EHC needs reassessment within six weeks of receiving a request for one. The council must notify the parent of its decision within those six weeks.
27. If a council decides to reassess a child’s needs and review the EHC plan, it has a maximum of 14 weeks (starting from the decision to reassess) to issue the final EHC plan.
28. The Regulations say a council must seek certain advice and information on a child’s needs from certain professionals. Councils must seek advice and information from any person the child’s parent reasonably requests the council seeks advice from.
29. The Code explains that advice and information from any person requested by the child’s parent is “where the local authority considers it reasonable to do so”.

What happened

30. Ms X’s son, B, has special educational needs and an Education, Health and Care (EHC) plan.
31. In July 2022, the Council agreed to reassess B’s needs by doing an EHC needs reassessment. The Council sent Ms X a letter the day after its decision, saying it would reassess B’s needs. Ms X asked the Council to seek advice and input from certain professionals.
32. In November, Ms X complained that the Council had not notified her of its decision whether or not to reassess B’s needs. She said the Council refused to reassess B.
33. The Council replied to Ms X, saying it told her it agreed to reassess B’s needs the day after it had decided to do so.
34. The Council issued B’s final EHC plan in February 2023.

Analysis

Decision notice

35. Ms X complains that the Council failed to send her a decision notice after a reassessment of her son’s needs (part a of the complaint).
36. As I have set out above, councils must decide whether to carry out an Education, Health and Care (EHC) needs reassessment, and tell the parent its decision, within six weeks of receiving a request for a reassessment.
37. In this case, the Council told Ms X it would reassess B’s needs the day after its decision. I find the Council told Ms X very quickly it would do an EHC needs reassessment for B. This is good practice. I therefore do not find the Council at fault.
38. Ms X said it was her understanding that councils have to send a decision notice after a reassessment. This is not the case: the Council had a duty to notify Ms X of its decision to reassess, which it did.
39. There is nothing in the Regulations which says a council has to send any other kind of decision notice. The final EHC plan is essentially the decision on the needs reassessment, and Ms X has the right to appeal an EHC plan at the SEND Tribunal.

Delay issuing the final Education, Health and Care plan

40. Ms X complains that the Council delayed issuing the final Education, Health and Care plan after the needs reassessment (part d of the complaint).
41. As I have said above, councils have a maximum of 14 weeks from a decision to do an EHC needs reassessment to issuing the final EHC plan.
42. In this case, the Council decided to reassess B’s needs in July 2022. 14 weeks from this decision was the end of October. The Council issued the final EHC plan in mid-February 2023. This is a delay of approximately three and a half months. This is fault. I find this fault caused Ms X injustice in that it caused avoidable distress (frustration).
43. The Council recognises it is at fault for the delay issuing the final EHC plan. It said there was a delay getting the educational psychologist’s report. It also said Ms X added to the delay by asking for extensive amendments to the report.
44. While I find Ms X had every right to ask the educational psychologist to amend their report, I have seen the requested amendments. I agree that the requested amendments were extensive and will therefore have contributed, in part, to the delay.

Needs reassessment

45. Ms X complains that the Council did not reassess her son’s needs after it agreed to do a reassessment (part e of the complaint).
46. As I have said above, councils must seek advice and information from any person the child’s parent reasonably requests that the council seeks advice from.
47. Ms X asked the Council to consult with a number of professionals. The Council agreed it was reasonable to consult those professionals. However, those professionals said there was no need to reassess B.
48. I find that the Council did an EHC needs reassessment for B, consulting all the professionals Ms X asked it to. For this reason, I do not find the Council at fault.
49. Ms X said she disagrees with the professionals’ opinions. This is not evidence of fault with the Council. The Council had a duty to seek the advice, which it did, and to use that advice to inform the EHC plan. Ms X had the right to appeal the content of the EHC plan at the SEND Tribunal if she disagreed with it.

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Agreed action

50. Within four weeks of this decision, the Council has agreed to apologise to Ms X in writing for the avoidable distress caused by the delay issuing B’s final Education, Health and Care (EHC) plan.
51. Within four weeks of this decision, the Council has agreed to make a payment to Ms X of £200 to reflect this injustice.
52. In arriving at this figure, I have considered the Ombudsman’s published guidance on remedies. I have taken into account the length of the delay, the impact of the delay on Ms X and B, and the impact on the delay due to Ms X’s request for extensive amendments to the educational psychologist’s report. I consider the above amount is proportionate to the injustice caused.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation. I find the Council at fault for part d of this complaint, and this caused Ms X injustice. The Council has agreed to take action to remedy the injustice caused.
55. I do not find the Council at fault for parts a and e of this complaint.
56. I have not investigated parts b and c of this complaint. This is because they are either premature or are outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman