Summary: Mrs X complained the Council failed to issue an Education, Health and Care plan for her child, S, after a Tribunal Order issued in March 2022. She says S missed the support he needed and caused her distress and frustration. She said the Council also did not follow its corporate complaints procedure. We found the Council was at fault. The Council accepted our recommendations on how to remedy the injustice its actions caused to Mrs X and S.

The complaint

1. Mrs X complains on behalf of her child, S, and herself. She says the Council:
• delayed issuing S’s final EHC plan following the Tribunal’s Order dated March 2022;
• would not consider the latest reports submitted by the specialists commissioned by the Council because they were sent in outside the “assessment period”; and
• did not follow its own corporate complaints procedure after it failed to send a stage two response to her complaint within 25 working days.
2. Mrs X says this has caused a considerable distress to her and to S. This was further intensified by the delays in the corporate complaints procedure.
3. Additionally, she says that because of the delay in finalising S’s EHC plan after the Special Educational Needs and Disability (SEND) Tribunal hearing, they missed out on the support from the dyslexia specialist, as well as Speech and Language Therapist and an Occupational Therapist.
4. She would like the Council to apologise, put all the support named in section F of S’s plan in place and train its staff to follow the statutory timeframes related to EHC plans.

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The Ombudsman’s role and powers

5. 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.
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. 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)
9. 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.
10. If we are satisfied with a council’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

11. I spoke to Mrs X, and I reviewed the documents provided by her and the Council.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

SEND Tribunal

13. There are time limits within which the Council must comply with the SEND Tribunal’s orders. These time limits are contained in Regulation 44 of the Special Educational Needs and Disability Regulations 2014.
14. Where a SEND Tribunal orders the Council to issue an EHC plan, the Council must:
• issue a draft EHC plan within five weeks of the order being made; and
• send a copy of the finalised EHC plan to the child’s parent or young person within 11 weeks of the order being made.

Education, Health and Care Plans

15. A child with special educational needs may have an EHC plan. The plan 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.
16. The Council is responsible for securing the set out special educational provision for the child. This means making sure that arrangements set out in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process. These duties are non-delegable, and a council cannot discharge its duty by showing it tried but failed to put the support in place.

The Council’s corporate complaints procedure

17. The Council’s complaint procedure has two stages. The Council says it will acknowledge complaints in writing. It will respond to stage one complaints in 20 working days and stage two complaints in 25 working days.

What happened

18. In August 2021 the Council assessed the needs of S but told Mrs X that it would not issue an EHC plan for S. The Council said that S’s needs could be met by their school, and an EHC plan was not necessary. Mrs X challenged this decision at a SEND Tribunal in the same month.
19. In February 2022 the SEND Tribunal held a hearing about the Council’s decision not to issue an EHC plan.
20. On 9 March 2022 SEND Tribunal told the Council to issue S’s EHC plan. It said that it was not satisfied that without the EHC plan the school would meet S’s needs.
21. In late March the Council emailed Mrs X and asked for copies of educational psychologist reports from 2021 and 2019 in order to issue a draft EHC plan for S. Mrs X sent the reports over hoping this would allow the Council to progress S’s EHC plan quicker.
22. The Council issued S’s first draft EHC plan on 4 April 2022. Mrs X responded with comments on the draft and sent it back the Council within a week.
23. In May the Council emailed Mrs X and apologised for the delay in finalising S’s EHC plan. It said that new information submitted by a professional had raised concerns about previously not considered need. The Council told Mrs X that it would seek approval for the new information, received after the initial assessment, to be included in S’s EHC plan.
24. Four days later the Council sent Mrs X a second draft EHC plan. In the email the Council said that:
• Mrs X made numerous amendments to the plan and the Council needed to check the source of information she added to the EHC plan;
• the Council needed to check if information submitted after the assessment period could be added to the plan. It decided the EHC plan should only include the information collected during the statutory assessment time;
• the professionals involved with S should submit their updated opinions to the Council during the annual review of his EHC plan once that was in place;
• the Council did not have two reports Mrs X referenced in her amendments on file and needed to see copies of these;
• after seeing the reports, the Council could issue a final draft before naming a school for S; and
• with a final draft EHC plan it would consult schools to find a school place for S.
25. In late May Mrs X replied to the Council and said:
• she understood that writing an EHC plan would take a substantial amount of time, but it had been 10 weeks since the SEND Tribunal ordered the Council to issue a plan for S;
• the Council had 3 weeks between the SEND Tribunal Order and when it issued the first draft to ensure it contained correct information;
• that before issuing the first draft EHC plan the Council contacted her to ask for copies of reports, which she sent, despite those being included in the Council’s SEND Tribunal bundle;
• she only made “numerous suggested amendments” because the Council failed to include the necessary information in the draft EHC plan.
26. In June 2022 the Council emailed Mrs X and apologised for ongoing delays.
27. On 21 June 2022 the Council emailed S’s psychologist to seek clarification about his advice. The Council said that the comments were inserted into an EHC plan and not made on a document signed by him. The psychologist confirmed their comments on the same day.
28. The following day, the Council sent the third draft EHC plan to Mrs X for her comments. The Council told Mrs X that:
• It could not find social care reports on its records, so it had contacted the social care team for an update; and
• this would be the last draft EHC plan and the only outstanding amendment was to name S’s school after the consultations have concluded.
29. In July 2022, the Council updated Mrs X about the school consultations, and said that all schools told the Council they would not be able to meet S’s needs.
30. In September 2022 Mrs X complained to the Council. She said that it should have already issued S’s EHC plan following the SEND Tribunal’s Order, and the delays were causing her and S distress and uncertainty.
31. In August 2022 the Council issued S’s final EHC plan, but Mrs X said this should have happened before 24 May 2022.
32. In September 2022 Mrs X asked the Council to consider her complaint under the stage two of its corporate complaint’s procedure.
33. In November 2022 the Council issued a stage two response to Mrs X’s complaint. It said that all recommendations from stage one response were appropriate, and it had nothing further to add.

The Council’s response to my enquiries

34. The Council said that:
• It issued S’s draft EHC plan within the legal requirement of 5 weeks since the SEND Tribunal Order.
• The delays happened after Mrs X’s substantial comments that the Council needed to consider and verify. The final plan was further delayed because the Council could not find a school that would meet S’s needs.
• The Council confirmed that it had considered all up to date information when writing S’s EHC plan.
• S did not get any provision in place between April 2022 and September 2022 as his plan was not finalised and the Council did not have a duty to provide it until it issued the final EHC plan. The Council said that all the provision was in place since September 2022 when the final EHC plan was in place.
• The Council said that evidence submitted in the “assessment period” meant evidence that it received as part of the SEND Tribunal proceedings and EHC Assessment in May 2021. The Council also told us that it would consider any updated information that it was sent.

What I found

S’s final EHC plan following the Tribunal’s Order dated March 2022

35. The Council issued S’s first draft plan within the legally required timeframe of five weeks from the SEND Tribunal’s Order.
36. However, the regulations require the Council to issue the final EHC plan within 11 weeks from the SEND Tribunal’s Order. This means the Council should have issued S’s final EHC plan by 25 May 2022, but this didn’t happen until August 2022. This is fault.
37. I consider the delay in issuing S’s final EHC plan caused Mrs X and S distress. There is uncertainty about what support that S needed would have been put in place before September 2022.
38. The Council said the delays in the process began after it issued S’s first draft EHC plan and received comments from Mrs X and professionals involved in S’s case.
39. The Council failed to properly consider and include the information it had available to it. This led to Mrs X having to provide detailed comments to ensure this information was included in the draft plan. In Mrs X's comments on the draft plan, she referenced the source documents, so it was clear to the Council where information came from.
40. Mrs X explained that she made comments to include in the EHC plan information the professionals supplied in their reports. When Mrs X included the changes, they were marked and referenced back to the report that contained the information.
41. The Council asked Mrs X to provide copies of professional's reports, however it should have already had these as they were included in the Tribunal bundle.
42. In my opinion this shows poor record keeping on the Council’s part. This further contributed to Mrs X frustration with the delays in finalising S’s EHC plan. She has also spent considerable time in finding and referencing documents to support her complaint to the Council.
43. Based on the evidence we have seen the Council’s actions were the cause of the delay in issuing the draft EHC plan.

Council’s consideration of the up-to-date professional reports

44. In its response the Council explained what it considered the “assessment period”. When the Council was writing S’s EHC plan, it would only consider the documents and professional reports from that time.
45. It told Mrs X the professionals should submit updated reports during the annual review of the EHC plan. In response to our enquiries however, the Council said that it would and did consider the updated information professionals sent in. I therefore consider it was fault for the Council to tell Mrs X that it would not consider the up-to-date professionals’ reports before it issued the final plan.
46. Mrs X believed that S’s EHC plan would not contain an up-to-date information, and this caused her avoidable distress.

Council’s handling of Mrs X’s corporate complaint

47. The Council’s corporate complaint policy says it will send a stage two reply to a complaint within 25 working days.
48. The Council responded to Mrs X’s complaint 27 working days after it accepted to investigate it. This is fault, however I do not consider the impact of this is so significant as to warrant a remedy.

Injustice to S

49. The SEND Tribunal decided S needed an EHC plan to have his needs met. The Council did not issue his final EHC plan within the legally required 11 weeks from the Tribunal’s Order and this affected S’s ability to access the education that they needed.
50. The fact that S has an EHC plan means that he needs special educational support to be able to interact and achieve education to the best of his abilities.
51. If the final EHC plan had been issued by 25 May 2022, S may have received direct support, but I cannot be sure what support could have been put in place by his previous school.
52. Mrs X and S have therefore been caused uncertainty. It is possible that S would have received some direct support from the therapy and educational support he needed in June and part of July.
53. The uncertainty of how much of essential support S missed out on means that an already vulnerable young person may have been further disadvantaged. Mrs S told us that S’s mental health was affected significantly and has led him to having suicidal thoughts.
54. Therefore, I recommend the Council should pay Mrs X a remedy to recognise the uncertainty of what support S may have lost in June and July 2022. Mrs X should use this remedy for S’s benefit.

Injustice to Mrs X

55. Mrs X has also been caused an injustice because she has experienced distress and frustration because of the Council’s failure to finalise S’s EHC plan on time.
56. She told us that she spent considerable time in commenting on the draft EHC plan to ensure it contained all the necessary information S’s professionals provided in their reports.
57. Mrs X also told us that she was concerned about S’s ability to adapt to the change of environment, as in September 2022 S was due to transfer from a primary school to a high school. This contributed and exacerbated the distress she experienced because of the delays in the Council finalising S’s EHC plan.
58. I recommend the Council should pay Mrs X a remedy in recognition of the avoidable distress the Council’s faults have caused her.

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Agreed action

59. The Council will take the following action within four weeks from the date of my final decision:
• apologise to Mrs X and S for the faults we have identified. The Council should ensure that the apology to S is in a format suitable for his needs; and
• pay Mrs X £400 to recognise the distress and uncertainty the Council’s fault has caused her and S.
60. The Council should also, within three months from the date of my final decision, share this decision with the Council officers dealing with SEN cases and emphasise the importance of issuing the final EHC plans within the legal timeframes.
61. The Council should provide us with evidence it has complied with the above actions.

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Final decision

62. There was fault which caused Mrs X and S an injustice. The Council agreed to our recommendations and my investigation is now complete.

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Investigator's decision on behalf of the Ombudsman