Summary: Miss X complained the Council failed to meet her child’s special educational needs and to issue her final Education, Health and Care Plan. Miss X also complained the Council failed to provide her with an advocate and it failed to conduct a carer’s assessment for her. Miss X said this affected her and her child’s mental health, and she suffered financial loss. There were some faults by the Council which caused injustice to C and Miss X. The Council will take action to remedy the injustice caused.

The complaint

1. Miss X, complained the Council:
1. failed to meet her child, C’s, special educational needs;
2. delayed and initially refused to complete Education, Health and Care needs assessment for C;
3. failed to issue C’s final Education, Health and Care Plan;
4. failed to conduct a carer’s assessment for Miss X on several occasions. This includes the Council’s delays and failure to accept the carer assessment request Miss X submitted to the Council in May 2022;
5. failed to provide Miss X with an advocate;
6. communicated poorly with her; and,
7. delayed responding to her complaint.
2. Miss X said the Council’s failings affected her and C’s mental health. She said it also caused significant distress, time and trouble, and financial loss because she had to fund private assessments for the special educational needs and disability (SEND) Tribunal.

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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. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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 Tribunal in this decision statement.
6. 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)
7. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)
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 a copy of the final report with Ofsted.

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What I have and have not investigated

10. I have not investigated Miss X’s complaint at point ‘b’ that the Council delayed and initially refused to complete Education, Health and Care (EHC) needs assessment for C. This was a matter for the Tribunal.
11. I have not considered Miss X’s complaint the Council failed to assess her for a carer’s assessment before May 2022. This complaint is late. I consider it reasonable for Miss X to have complained about the matter earlier, there is no good reason to investigate it now.
12. I considered the Council’s actions from May 2022 to January 2024. This period covers when Miss X asked the Council to assess C for an EHC Plan to when C’s final Plan was issued.

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How I considered this complaint

13. I considered:
• Miss X’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
14. I sent Miss X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Education, Health and Care Plan

15. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
16. 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 the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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 express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond within 15 calendar days.

17. There is a right of appeal to the SEND Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue an EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.
18. The courts have established that if someone has appealed to the tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.
19. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 
20. Where the child’s parent has appealed to the tribunal against a council’s decision not to assess a child, and the council tells the tribunal it will not oppose the appeal before it submits a response, the council shall carry out the assessment within four weeks of notifying the Tribunal it has conceded.

Reasonable adjustments / Advocacy

21. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to anybody that carries out a public function. Its aim is that, as far as reasonably possible, people who have disabilities should have the same standard of service as non-disabled people.
22. Service providers have to consider removing or preventing obstacles to people with disabilities accessing their service. If the adjustments are reasonable, they must make them.
23. Only a court can find that there has been a breach of the Equality Act. However, the Ombudsman can find a Council is at fault if it fails to have due regard to its legal duties under equalities legislation.

Parent Carer Assessment

24. The Children Act 1989 (as amended by the Children and Families Act 2014) places specific duties on councils to assess the needs of carers with parental responsibility for disabled children as well as young carers. Councils have an obligation to assess parent carers on the ‘appearance of need’ (Children Act 1989, section 17ZD/E), or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.
25. Councils should consider providing the appropriate support where it decides the parent has need for support in caring for a disabled child. (Children Act 1989, section 17ZF)
26. Parent Carer assessment can be completed at the same time as the assessment of a disabled child and can be combined into a single assessment document. The assessment should look at the needs of parent carers for additional support in their caring role. (Sections 17ZB-ZD of the Children Act 1989, inserted by Section 97 of the Children Families Act 2014)

Care Act Assessment

27. Social care assessments of disabled young people aged over 18 are carried out under the Care Act 2014.
28. The Act also requires assessments to be completed of disabled children and family carers as they move towards adulthood.

Council complaint procedure

29. The Council has a two-stage complaint procedure:
• Stage one: a member of staff from the service complained about will investigate the complaint and respond in 10 working days.
• Stage two: a senior officer in the complaints team will review the complaint and, if an investigation is needed, will respond in 20 working days.

What happened

30. Due to the considerable amount of correspondence in this case, this chronology includes key events and does not cover everything that happened.

EHC Plan

31. Miss X asked the Council to assess C for an EHC Plan in May 2022. The Council decided not to assess C and informed Miss X in July 2022.
32. In August 2022, Miss X appealed against the Council’s decision not to assess C to the Tribunal. Late evidence was filed with the Tribunal by both parties. The Council reviewed the extra evidence, and in October 2022 decided it would assess C for an EHC Plan. The Council told the Tribunal a hearing was not needed.
33. In January 2023, the Council decided it would issue an EHC Plan for C. The Council issued a draft EHC Plan for C in February 2023.
34. Miss X submitted her comments on C’s initial draft EHC Plan and further amendments to the Plan on a couple of occasions. Between February 2023 and November 2023, the Council issued four draft EHC Plans for C.
35. On 5 January 2024, the Council issued C’s final EHC Plan. The final Plan included parental views/comments from Miss X and information it received from professional reports such as:
1. making a referral to occupational therapy (OT) to explore interventions and implement strategies to better understand and manage C’s sensory needs
2. 1 hour per week mental/emotional support for C
3. 1:1 reflection time, smaller group with staff support, flexible learning timetable to support periods of poor mental health
4. monthly wellness membership
5. reasonable adjustments for exam access arrangements
6. 6 hours direct payment per week to support C’s access to the community to develop her independent living skills.
36. In response to our enquiries, the Council said between 2022 and before it issued C’s final EHC Plan, it confirmed C:

• accessed a ‘preparing for adulthood programme’
• undertook some academic and preparation for work qualifications
• received support with her mental health, physical activities and her wellbeing (based on parental request) and
• continued to receive education.

37. Miss X disputed the Council provided C with mental health support until January 2024 after her final Plan was issued. Miss X also said the Council did not provide C with full time education, no physical activities support and no wellbeing support during the EHC Plan process delay period.

Advocacy

38. Miss X has some health conditions. Due to the impact Miss X’s health conditions has on her, in May 2022 she asked the Council to provide her with an advocate as a reasonable adjustment to access its services.
39. The Council provided Miss X with information about advocacy services. Miss X contacted the service, and she was informed it only covered “one-off, short-term” support and that it was the Council’s adult social care that could commission long‑term advocacy support. Miss X contacted the Council’s adult social care team. It said Miss X did not meet the care and support criteria and it referred Miss X back to the children social service team.
40. The Council said it was aware Miss X was being supported with advocacy referrals by other services. The Council did not provide an advocate for Miss X.
41. Miss X said she had to personally get and pay for an advocate. Miss X said the advocate started to support her with case work advocacy in August 2023.

Carer’s Assessment

42. Miss X informed the Council that her health conditions as well as her children’s (C and D) special needs were affecting her caring responsibilities and she was struggling managing C and D’s needs. Miss X asked the Council for support.
43. In May 2022, the Council completed a children and family (C and F) assessment for Miss X, C and D. The Council said the Parent-Carer assessment was completed as part of the C and F assessment.
44. The assessment acknowledged Miss X’s needs and that C and D had disabilities. The assessor found it was difficult to know how this affected their everyday lives and whether the support/respite Miss X requested was necessary. The Council concluded the needs of the family including Miss X were sufficiently being met by its existing services and other community services.
45. Miss X disputed the outcome of the assessment and asked for one to be completed by the children with disabilities team. The Council sent a referral to the children with disabilities team in July 2022.
46. In October 2022, the Council’s children with disabilities team completed another C and F assessment. Miss X reiterated she was concerned that due to her own mental health needs and learning disability she could become overwhelmed, and this would affect her parenting capacity. Miss X said she felt she had to fight services to get the support she needs, rather than being supported by them. Miss X asked for respite for her children. The Council maintained C and D did not reach the threshold for intervention because their needs were not ‘severe and profound’. The Council gave Miss X information about organisations and community groups she could access, and it closed the case.
47. When C became an adult, the Council undertook a Care Act assessment for C in June 2023. The assessment recommended a carer’s assessment for Miss X.
48. In its response to our enquiries, the Council said further assessment from children’s social care was declined by Miss X via her advocate. The Council confirmed the option of a further assessment and reasonable adjustments remain open to Miss X should she wish to request these.
49. In response to our draft decision statement, Miss X said the Council had assessed C in November 2022 as part of her EHC Plan process and she disputed it completed a Care Act assessment for C in June 2023. Miss X said a 6 hour per week support was agreed to support C access the community to develop her independent living skills during the November 2022 assessment. And as a result, Miss X said the Council should reimburse her or C with the agreed provision from November 2022.
50. Miss X also disputed she or her advocate declined a carer’s assessment to be completed for her by the Council.

Complaint

51. In March 2023, the Ombudsman asked the Council to consider Miss X’s complaint that it delayed providing SEN provision for C and its communication was poor. The Council responded in April 2023 and explained it considered information she provided as part of the EHC Plan tribunal process and decided to assess C for an EHC Plan. It said following its assessment of C it decided to issue an EHC Plan. It said because of the number of people Miss X contacted at the Council, she was not given consistent answers or information. It apologised for any misunderstanding and confusion in communication. It advised she now had a single point of contact and it had delivered staff training to avoid this happening again.
52. Miss X asked the Council to consider her complaint at stage two in May 2023. She complained the Council did not agree to assess C for an EHC Plan sooner, did not meet its duties under the Equality Act, failed to undertake a parent-carer assessment, and its communication was poor.
53. The Council responded in May 2023. It said it received extra information about C before the tribunal and because of this, it decided to assess C for an EHC Plan. It said there was no evidence it did not adhere to the Equality Act. It said its complaint team told her she had the right to an advocate and could approach her preferred provider but could not arrange this for her. The Council said it had been advised a parent-carer assessment had been completed. It upheld her complaint about poor communication.

Analysis

Delay with EHC Plan process

54. Miss X appealed against the Council’s decision not to complete the EHC needs assessment for C to the Tribunal.
55. In October 2022, during the Tribunal process the Council decided to assess C for an EHC Plan. The Council should have carried out the assessment and decide whether to issue an EHC Plan within four weeks and issued the final EHC Plan without delay. The Council did not issue C’s final EHC Plan until 5 January 2024. This was a significant delay of approximately 13 months, and it is not in line with the statutory guidance. This was fault.
56. The Council’s delay had an adverse impact on Miss X because it delayed her right of appeal to the Tribunal if she disagreed with the content of the Plan. This caused her avoidable distress and frustration.
57. The Council’s delay meant C did not have a final EHC Plan in place setting out the specialist provision she required sooner. As the final EHC Plan was based on information and professional reports the Council had prior to January 2023, on the balance of probabilities C would have received the specialist provision sooner had the Council acted without fault. C lost out on some of the provisions in her final Plan over a significant period. This included provisions/support with C’s mental health, physical activities and her wellbeing.
58. But I consider the injustice to C was mitigated because she accessed a ‘preparing for adulthood programme’, undertook some academic and preparation for work qualifications and she continued to receive education during the delay period.

Advocacy

59. There was no evidence to show how the Council ensured Miss X secured an advocate after it signposted her to advocacy services. Miss X experienced difficulties with securing an advocate from the advocacy service and was passed between the Council’s adult social care and children services team. There was no evidence to show how the Council considered and reached its decision that Miss X did not meet its criteria to be provided with an advocate. This was fault.
60. Furthermore, I do not consider the fact the Council said it was aware Miss X was receiving support with advocacy referrals from other services discharged it of its duty to arrange and secure an advocate for her. This was fault. The Council failed to have due regard to and meet its legal obligations under the Equality Act 2010 to provide Miss X with reasonable adjustments to access its services. It caused distress and frustration to Miss X. The Council’s failings also deprived Miss X of the support she required as a result of the impact her health conditions has on her.

Parent Carer assessment for Miss X

61. Miss X asked the Council for support to help cope with her parenting duties due to her children’s special needs and her health conditions.
62. While the Council’s C and F assessments did not make specific reference to the Parent-Carer assessment, Miss X’s needs were considered during both May and October 2022 C and F assessments. The decision to undertake a combined assessment is one councils are entitled to make in line with the Children Act 1989 and the Children Families Act 2014.
63. However, the outcome of the assessment was that the Council decided C and D did not reach the threshold for intervention because their needs were not ‘severe and profound’, and it closed the case. I find the Council failed to apply the right test in this case in line with the provisions of the Children Act.
64. Section 17 of the Children Act states councils have an obligation to assess parent carers on the ‘appearance of need’, or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.
65. The Council found C and D had disabilities and therefore, it should have properly considered Miss X’s needs and wellbeing in line with Section 17 of the Act. I find the Council applied a higher bar when it said C and D’s needs were not ‘severe and profound’. And it then failed to discharge its obligation to assess Miss X when she requested the Council to complete one for her. This was fault. It caused Miss X distress, frustration, and uncertainty in not knowing if she would have been eligible for support in her caring role had she been assessed.
66. Miss X said the Council assessed C in November 2022 and a 6 hour per week funding was agreed to support C access the community and to develop her independent living skills. So, Miss X said the Council should backdate the funding to November 2022. There was no evidence to show a November 2022 assessment was completed for C and the outcome of the alleged assessment. Therefore, I cannot make a finding on this matter, and I have no ground to direct the Council to make any reimbursement to C to that effect.
67. However, I note the 6 hours direct payment per week provision was contained in C’s final EHC Plan issued in January 2024. I find this was part of the EHC Plan process and the overall delay by the Council in issuing C’s final Plan. This has been addressed above where I found fault by the Council and on balance, if not for its delay, the 6 hours per week direct payment provision would have been in place sooner.
68. With regards to C’s Care Act assessment, evidence seen shows the Council completed this assessment for C in June 2023. The assessment recommended a carer’s assessment for Miss X. There is no evidence to show the Council has conducted a carer's assessment for Miss X to date.
69. The Council said Miss X declined the carer’s assessment via her advocate which Miss X disputed. The Council provided evidence of its correspondence between it and Miss X’s advocate dated February 2024 to show the carer’s assessment was declined. The evidence provided falls outside the period of my investigation and therefore I cannot make a finding on the February 2024 evidence. If Miss X has further complaints about the matter, she should raise it in the first instance with the Council and if she remains dissatisfied, she can make another complaint to the Ombudsman.
70. In conclusion, I note the Council says the option of a further assessment and reasonable adjustments remain open to Miss X should she wish to request these. This is welcomed.

Poor Communication with Miss X

71. There was fault by the Council for its poor communication with Miss X. This caused her distress and frustration. In the Council’s complaint response, it acknowledged and apologised to Miss X for any misunderstanding and confusion in communication. I consider the Council remedied the fault appropriately by assigning a single point of contact to Miss X and it made service improvements. These remedies are proportionate with our guidance on remedies.

Council’s complaint handling

72. The Council registered Miss X’s complaint in March 2023 and said it would provide a response in 10 working days. The Council delayed responding to Miss X. It took 29 working days to issue Miss X with its stage one response. This was fault but I do not consider the delay caused significant injustice to Miss X.
73. There was no delay with the Council’s stage two response. This was sent within 20 working days of Miss X’s request for her complaint to be escalated. This was not fault.

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Agreed action

74. To remedy the injustice caused by the faults identified, the Council has agreed to within one month of the final decision:

• apologise in writing to C and Miss X to acknowledge the injustice caused to them by the Council’s faults as identified above. The apology should be in accordance with our guidance, Making an effective apology
• pay C £1,400 to acknowledge the loss of some provision as contained in the final Education, Health and Care Plan due to the Council’s delays. This is calculated at £400 per term from November 2022 to December 2023
• pay Miss X a symbolic payment of £500 in recognition of the injustice caused to her by the Council’s faults as identified above. This includes delay in receiving rights of appeal to the Tribunal, avoidable distress, frustration and uncertainty
• by training or other means remind relevant staff of the requirement to carry out an Education, Health and Care assessment within four weeks of notifying the Tribunal it has conceded and agreed to assess a child or young person
• remind relevant staff of the requirement to issue a final Education, Health and Care Plan within 20 weeks from the date an assessment was requested
• provide guidance to relevant staff about the importance of making reasonable adjustments such as arranging advocates for service users to access its services. This is to ensure the Council complies with its legal obligations under the Equality Act 2010
• by training or other means remind relevant staff of the importance of completing carer’s assessments to ensure support needs for carers are identified and met in a timely manner

75. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. I find evidence of some faults by the Council leading to injustice. The Council will take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman