Summary: Mrs X complains the Council failed to issue an amended Education, Health and Care Plan (EHCP) and carry out assessments ordered by the SEND Tribunal. We find fault with the Council for delay causing Mrs X frustration and distress. We have recommended an apology and payment for Mrs X, and for the Council to complete a carers’ assessment.

The complaint

1. Mrs X complains the Council did not issue an amended EHCP or carry out assessments in line with the SEND Tribunal’s order.
2. This caused frustration and distress to Mrs X with the financial impact of having to arrange educational provision for her daughter.

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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. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I spoke with Mrs X and considered the information she provided.
7. I made enquiries with the Council and considered the information it provided.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Education, Health and Care Plan

9. A child with special educational needs may have an Education, Health, and Care plan (EHCP), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.
10. The EHCP is set out in sections which include
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.

Appeal right

11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.

Amendments following Tribunal Order

12. Where the Tribunal orders a council to amend an EHCP, the council shall amend the EHCP within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 

EOTAS

13. Education other than at school (EOTAS) is a package of education which is council-funded, and should be in section F of the EHCP.

Child in Need

Councils must safeguard and promote the welfare of children within their area who are in need. (Children Act 1989, section 17)

14. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. Where a referral is accepted under section 17 the council should lead a multi-agency assessment and compete it within 45 working days. (Working Together to Safeguard Children) 

Personal Budget

15. A personal budget is money identified by a council to deliver provision set out in an EHCP where the parent is involved in securing the provision.

What happened

16. Mrs X has a daughter, Y, who has Autism and other significant needs. Y’s first EHCP (dated May 2021) named the mainstream school she had been attending in Section I.
17. Mrs X brought an appeal to the SEND Tribunal on the basis the school was no longer suitable for Y’s needs, and she needed a specialist placement.
18. The Council wanted to keep the mainstream school named on the EHCP, then shortly before the Tribunal hearing, the school said it was no longer suitable for Y’s needs. The Council then agreed to leave section I blank and agreed Y should have education other than at school (EOTAS).
19. The SEND Tribunal made an order on 1 July 2022 for the Council to:
• Amend Y’s EHCP;
• Complete a Child in Need (CiN) assessment; and
• Complete a carers’ assessment for Y’s parents.
20. The Council issued an updated EHCP after the Tribunal on 29 July, however it did not fully follow the Tribunal order as there was no detail in the personal budget (PB) section.
21. Mrs X had been funding EOTAS herself. The Council paid Mrs X at the end of October to cover Y’s educational provision from September to December. It agreed Y’s PB in January 2023.
22. A case officer made a home visit to Mrs X for the CiN assessment at the end of October, and completed the report in December, but did not carry out the carers’ assessment.
23. Mrs X did not agree with the EHCP the Council issued in July. She made a complaint to the Council in October. Mrs X instructed a solicitor in August after failed attempts to communicate with the Council. The solicitor sent a letter threatening action to the Council in December.
24. The Council issued the amended final EHCP in February 2023 which complied with the Tribunal order.
25. In April 2023 Mrs X wrote to the Council again outlining her complaint (see paragraph 1), after numerous attempts to chase the Council for a response since October 2022.
26. The Council responded to the stage one complaint in May, saying:
• It resolved the issue of the PB payment but the next payment remained outstanding in January 2023. There was delay releasing the second payment which may have had an impact to Y’s education. Mrs X made several attempts to chase the Council and received limited contact and communication during this time;
• There was an unacceptable delay in issuing Y’s new EHCP following the SEND Tribunal. This complaint is upheld and the Council apologised for the delays and distress caused;
• The complaint the Council failed to action the Tribunal order, along with poor communication from the Council is upheld. The Council apologise for this.
27. Mrs X was not happy with the response so she escalated her complaint to stage two in May. The Council responded in June to the following points:
• Complaint process not followed: The Council apologised saying there were clear errors with the complaint response. It received the first complaint on the 13 October. It was not until the 27 February 2023 the Council realised the complaint had not been managed correctly. It said the Customer Team is a relatively new team and it has learnt from this mistake. The complaint process now includes a conversation with the complainant to ensure all parts of a complaint are understood, then checked with responding managers. The Council has also appointed a member of staff who has knowledge of the SEN process to help understand complex complaints more fully. It could have communicated more effectively and more frequently and it recognised the impact this has had on Mrs X and her family.
• Payment of PB outstanding / EHCP does not comply with the Court order: The Council sent notice to the relevant social care team on 6 October, which is three months after receipt of the final order. This is a significant and unacceptable delay. Having investigated the extent of these failings further the Council can confirm the levels of delay and lack of contact from the SEND team are far from the service it aspires to deliver. These delays were caused because of extreme pressures on the Council, which in turn had an effect on staffing. The Council is employing more staff and has installed a new team to focus on the Tribunals Resolutions and Compliance. This has already had a positive effect on productivity and pressure for the wider team. The Council assigned more resources to address the arrangement of funding of PB for families.
• Failing to action SENDIST orders / poor communication: The Council completed the assessment ordered by the Tribunal on 6 December. It apologised for the notable delay. As the assessment is eight months old the Council propose a new assessment take place to reflect accurately the families current circumstances. The contact details of the team did not work and this has been raised with business support to ensure it is put right.
28. Mrs X remained unhappy with the response so she brought her complaint to the Ombudsman.

Analysis

29. There is a clear delay between Mrs X raising her complaint in October 2022 and the Council responding in May 2023. This is fault by the Council causing frustration and time and trouble to Mrs X.
30. The Tribunal order is dated 1 July 2022. The Council should have amended the EHCP within five weeks (see paragraph 12). The Council issued an EHCP at the end of July but it did not comply with the order. The final compliant EHCP was not issued until February 2023 which is fault by the Council, causing distress and frustration to Mrs X.
31. The Council should have carried out a CiN assessment within 45 days, (see paragraph 14) but the Council say the assessment was not completed until December 2022. This four-month delay is fault by the Council causing Mrs X frustration, uncertainty and distress.
32. Mrs X says she still has not received the CiN report despite having the assessment in October 2022 and July 2023. This is fault by the Council causing frustration and distress to Mrs X.
33. The PB payment was late to Mrs X. It should have been in place before the start of term in September. This is fault causing frustration and uncertainty and may have had an impact on Y’s education.
34. There is no evidence the Council carried out a carers assessment for Mrs Y and her husband. This is fault causing frustration and uncertainty to Mrs X.
35. In response to our enquiries, the Council suggested a remedy of £500 in recognition of distress, uncertainty and frustration caused to Mrs X and her family due to the delays and lack of communication between July and October 2022. It would like to propose a further payment of £250 for the added uncertainty and distress caused by the further delay in completing the January 2023 payment for the balance of the PB.
36. I agree with the remedies the Council has put forward and have also added further remedies in the relevant section below.
37. I welcome the Council’s recognition that it failed to take proper account of its duties, and that it is acting to ensure this does not reoccur.

Agreed action

38. Within one month of the final decision, the Council should:
• Write to Mrs X and apologise for the distress and frustration caused by the faults identified above;
• Make Mrs X a payment of £900 made up of:
1. £150 for the time and trouble caused by the delay in dealing with her complaint;
2. £500 for the frustration, uncertainty and distress caused as a result of its delays and failure to communicate;
3. £250 to recognise the injustice caused to Mrs X and Y for the delay in the PB payment; and

• Carry out the carers’ assessment and send Mrs X the CiN assessment.

39. We note the Council is making changes within the SEN team and reviewing its complaint processes. I have not made any recommendations to change or update the Council’s procedures as we will monitor the impact of these changes through our complaints.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I find fault with the Council for delays, failure in communication and failing to adhere to the SEND Tribunal order. I have recommended remedies for the injustice caused to Mrs X as a result.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman