Summary: Miss X complained about Council delays in issuing her child’s Education Health and Care plan and managing her complaint. We find the Council at fault and recommend it apologises to Miss X and makes a payment of £4500 in recognition of her child’s missed special educational provision and £500 for uncertainty and distress.

The complaint

1. Miss X complains the Council:
1. Delayed issuing an Education Health and Care Plan (EHC plan) for her son (Y).
2. Delayed its response to her complaints.
3. Failed to provide Y suitable educational provision between May 2019 and May 2021.
4. Failed to undertake further reviews in 2022 for a personal budget and failed to set an annual review date.
2. Miss X says Y missed out on special educational provision and this caused her uncertainty and distress. She says she also was inconvenienced trying to resolve her complaint with the Council.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. Miss X complained to us in February 2023. Her complaint issues are about matters which occurred between 2019 and 2021. This is more than 12 months after she first became aware of them. However, the records show Miss X complained to the Council and there was delay by the Council in providing its final response. Miss X also did not allow the matter to rest and the potential injustice to her child is serious. I have therefore exercised discretion to investigate some aspects of Miss X’s complaint as set out below (paragraph 9).
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. 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)

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What I have and have not investigated

9. I have investigated Miss X’s complaint except:
• 1 (c) as Miss X confirmed she did not raise this issue with the Council directly at the time and assumed it was aware of the situation. She also said she was not familiar with the process. This aspect of Miss X’s complaint is therefore late, and I have not found good reason to exercise discretion to investigate this strand out of time as set out in paragraph 5 (above).
• 1 (d) as these issues are being considered as part of a separate complaint by the Ombudsman.

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How I considered this complaint

10. I have considered information provided by Miss X and discussed her complaint with her. I also made enquiries with the Council and considered its response and evidence provided.
11. Miss X and the Council now had an opportunity to comment on my draft decision. I considered their comments before reaching a final decision.

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What I found

Education Health and Care Plans

12. A child with special educational needs (SEN) may have an Education, Health, and Care (EHC plan). The EHC plan is set out in sections which includes the child or young person’s special educational needs, the special educational provision needed by the child or the young person and the name and/or type of school. 
13. 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).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan and ask for a particular school or other institution to be named in it.
14. Councils have a duty to secure the specified special educational provision in an EHC plan for the child or young person. (Section 42, Children and Families Act 2014)

Council’s complaints policy

15. At stage one (local resolution) the service will acknowledge the complaint within three working days and provide a full reply within 20 working days.
16. If the complainant remains dissatisfied, they may escalate to stage two and a formal response will be provided within 20 working days but may take up to 65 working days with complex complaints.

What happened

17. Miss X’s son (Y) is autistic. The Council told us Y was on the roll at a primary school (School A) but home schooled between 2016 and 2021.
18. The available evidence indicates, on 21 November 2019 Miss X requested an Education Health and Care assessment for Y. Miss X said the Council acknowledged her request but did not provide any further response.
19. In early February 2020, Miss X sought an update. She said, in late March the Council informed Y’s EHC assessment request had not been logged on its system. Miss X said she was distressed by the news and escalated the situation with senior officers to investigate.
20. The Council then formally agreed to assess Y’s EHC needs. The records indicate this would have been on or around the 26 March 2020. The Council explained the assessment process was delayed by four weeks as it did not receive an educational psychologist’s report on time.
21. The Council issued Y’s draft EHC plan on 7 September. Miss X then selected her preferred school (School B). She also requested the EHC plan be amended to an Education Other Than at School (EOTAS) setting with a personal budget.
22. Miss X explained the Council issued an amended draft EHC plan in October but did not agree her request for an EOTAS setting. It then consulted School B in December, which later declined to offer Y a place.
23. Miss X said an officer informed her at the time the Council intended to put a mainstream school setting in Y’s final EHC plan. Miss X said this caused her additional stress and she had to communicate with senior officers again (between January and May 2021) to ensure the situation was properly reviewed.

Y’s final EHC plan

24. On 25 May 2021, the Council issued Y’s final EHC plan. The placement on that plan was EOTAS. The records indicate Y received the provision in his EHC plan from this point onwards. The EHC plan provided for:
• Daily assistance with developing better communication skills.
• Daily assistance with helping Y to focus, plan and learn to cope with difficult situations.
• One hour speech and language therapy (SALT) per week divided into suitable short sessions.
• Weekly assistance with developing social interaction skills using games therapy.
• Daily assistance with an online mentor to encourage socialisation and independence from his mother.
• Daily assistance with sensory support.

Miss X’s complaint and Council responses

25. In March 2021, Miss X complained to the Council about its failure to meet the statutory deadlines during Y’s EHC assessment process and failure to include EOTAS and a personal budget in Y’s draft EHC plan.
26. In its mid-June stage one response, the Council:
• Apologised for the delay in providing its complaint response.
• Apologised for the delays in the EHC assessment process and confirmed it had agreed EOTAS and a personal budget in Y’s final EHC plan.
27. Miss X was not satisfied with the Council’s response and escalated her complaint to stage two.
28. The Council provided its stage two response in mid-February 2022. It:
• Apologised for the delay and said it had to review multiple records to address Miss X’s complaint. It had also received a particularly high volume of complaints in the same period which had affected its response time.
• Explained it had addressed Miss X’s complaint about EOTAS and a personal budget in its earlier response.
29. In its further (March 2022) response, the Council:
• Apologised for not explaining the reasons for the delay in issuing Y’s final EHC plan. It said this was due to a significant increase in demand for assessments. It had since implemented processes to reduce the backlog by recruiting more staff and outsourcing parts of the EHC process.
• Explained the backlog also affected its ability to respond to Miss X’s November 2019 request and meet the final EHC plan statutory deadline (13 August 2020).
• Confirmed it had issued Y’s draft EHC plan on 7 September. It said Y’s final EHC plan should then have been issued by late September confirming its position on EOTAS or a suitable alternative educational setting, but it failed to do this.
• Explained there was a further six-month delay in issuing Y’s final EHC plan. It accepted Miss X was therefore delayed the right to appeal to the SEND tribunal.
• Offered Miss X £600 compensation in recognition of the delays and any distress caused to her and Y.
30. Miss X remained unhappy with the Council’s response, did not accept the offer of payment, and approached the Ombudsman.
31. In response to our enquiries the Council said:
• It has experienced staff shortages which impacted the EHC assessment process. It has restructured its service and allocated overdue cases to Senior Caseworkers to address the backlog. It has also written a statement of action following an inspection by Ofsted.
• Its complaints procedure was not adhered to in Miss X’s case due to staffing issues which have also been addressed through internal procedures.

Was there fault and did it cause injustice?

i) Miss X says the Council delayed issuing her child’s (Y’s) Education Health and Care Plan (EHC plan).

32. Miss X requested Y’s EHC assessment on 21 November 2019. The Code (paragraph 13) required the Council to confirm its agreement to assess Y or its reasons for refusal within six weeks, by 2 January 2020.
33. Based on the available evidence the Council did not confirm its agreement to assess Y until 26 March 2020. This was approximately 17 weeks after Miss X’s initial request. The Council took 11 weeks longer than set out in the Code (paragraph 13). The Council said this was due to a large backlog of cases and staff shortages. The delay in confirming its agreement is fault. This caused Miss X avoidable uncertainty and distress about the outcome, and she had to send further emails in early 2020 to bring the situation to the Council’s attention.
34. The Code (paragraph 13) also required the Council to progress its EHC assessment in a timely manner and issue Y’s final EHC plan within 20 weeks of Miss X’s initial request (by 9 April 2020). However, Y’s final EHC plan was issued on 25 May 2021. The Council explained it was delayed by an educational psychologist’s report by one month. It also explained it was under additional pressures due to staff shortages and increased demand for assessments at the time.
35. Even accounting for the EP’s delay of a month the Council further delayed issuing Y’s final EHC plan by almost a year in total which is fault. This meant Y did not receive the special educational provision he was entitled to during the Summer and Autumn terms of 2020 and Spring term of 2021. The delay also caused Miss X avoidable uncertainty, distress and time and trouble complaining.

ii) Miss X says the Council delayed managing her complaint.

36. Miss X complained in March 2021, the Council did not provide its stage one response until June. The Council’s delay was fault and inconsistent with its complaints policy which says it will acknowledge complaints within three working days and provide a full response within 20 working days. This caused Miss X uncertainty and distress about whether her complaint was being managed properly.
37. Miss X escalated her complaint in June 2021. The Council did not provide its stage two response until February 2022. The Council’s complaints policy says it will provide a response within 20 working days but may take up to 65 working days in more complicated matters. However, the records do not show the Council advised Miss X that it needed additional time or the reasons for the delay until its further response in March 2022. There was undue delay by the Council in responding to Miss X’s complaint which is fault. This caused Miss X avoidable uncertainty and distress about her complaint outcome.

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Agreed action

38. I am satisfied with the measures the Council has taken to address delays in the EHC assessment and complaints processes to prevent recurrence.
39. The Council has also offered Miss X £600 in compensation for the delays in confirming its agreement to assess Y’s EHC needs, in issuing his final EHC plan and responding to her complaint. This is a partial remedy but does not reflect the extent of injustice caused to Miss X and Y.
40. Within one month of my final decision the Council should also:
1. Write and apologise to Miss X for the avoidable uncertainty, distress and time and trouble caused by the delays I have identified in this statement and make her a payment of £500 to reflect this.
2. Make a payment of £4500 to Miss X in recognition of Y’s missed provision between April 2020 and May 2021. This is based on our guidance on remedies which recommends payments between £900 to £2400 per term of missed provision. It also takes into account the severity of Y’s SEN as set out in his final EHC plan, the duration of missed provision and impact on his development. This payment should be the total amount so includes the Council’s previous offer.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I find the Council delayed issuing Miss X’s sons (Y’s) EHC plan and delayed managing her complaint which caused Y to miss educational provision and caused Miss X uncertainty and distress. The Council should apologise to Miss X and make payments as set out in this statement to reflect the injustice.
43. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman