Summary: Mrs D complained the Council did not follow the special educational needs and disability code of practice when it assessed and issued an education, health, and care plan for her daughter, E. Mrs D said this delayed E being able to access specialist provision and caused their family distress. We found fault with the Council for delay issuing E’s final education, health, and care plan and failing to hold a co-production meeting. The Council will make a financial payment to remedy the injustice caused to E and her family by its faults.

The complaint

1. Mrs D complained the Council did not follow the special educational needs and disability (SEND) code of practice when it assessed and issued an education, health, and care plan for her daughter, E. Mrs D said the Council delayed issuing a final EHC plan for E, refused to hold a co-production meeting, failed to name her preferred educational setting, tried to delay an SEND tribunal hearing, and did not adhere to the SEND tribunal orders. Mrs D said this delayed E being able to access specialist provision and caused their family distress.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation 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 organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. 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)
6. 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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What I have and have not investigated

7. I have not investigated the Council’s decision about which school to name in E’s EHC plan, it’s conduct during the SEND tribunal, or whether it adhered to the final SEND tribunal order.
8. The Council’s decision about which school to name in E’s EHC plan was appealed to the SEND tribunal and therefore, not a decision I have investigated.
9. The SEND tribunal is a specialist adjudicative body that is both competent and best placed to consider the conduct of the parties in an appeal. Therefore, I have not investigated the Council’s conduct during the SEND tribunal or its adherence to orders the SEND tribunal made during the proceedings.
10. Mrs D’s complaint the Council failed to adhere to the final SEND tribunal order is a new complaint. The Council has not had an opportunity to investigate and reply to this complaint. Mrs D can raise this matter with the Council and ask it to consider it under its complaint procedure.

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How I considered this complaint

11. I considered:
• Mrs D’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
12. Mrs D and the Council commented on a draft decision. I considered their comments before making a final decision.

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What I found

Legislation and Guidance

13. A child with special educational needs may have an education, health and care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
14. 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 special educational needs (SEN) regulations 2014.
15. The EHC plan is set out in sections, including:
• 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. 
16. We cannot direct changes to the sections about education or name a different school. Only the SEND tribunal can do this.
17. 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.
18. The child’s parent or the young person must be given 15 calendar days to consider and provide views on a draft EHC plan and ask for a particular school or other institution to be named in it. During this period, the Council must make its officers available for a meeting with the child’s parent or the young person on request if they wish to discuss the content of the draft EHC plan.
19. 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).
20. Where the SEND tribunal orders a council to amend an EHC plan, the Council shall amend the EHC Plan within 5 weeks of the order being made. (SEN regulations 2014)

Council’s complaint policy

21. The Council has a two-stage complaint procedure.
22. Stage 1: The appropriate manager for the service complained about will investigate and respond to the complaint in 20 working days.
23. Stage 2: A senior manager who has not previously been involved with the complaint will carry out a full review and if necessary, further investigate the complaint. The Council will send a comprehensive reply within 20 working days.
24. If at either stage the Council will take more than 20 working days to investigate, it will let the complainant know, provide them with a progress report, and tell them when it believes it will provide its complaint response.

What happened

25. This chronology includes key events in this case and does not cover everything that happened.
26. E has special educational needs and a diagnosis of autism spectrum disorder. In the academic year 2021/ 2022, E was in Year 4 and on roll at School 1.
27. In April 2022, School 1 asked the Council to assess E for an EHC plan. The Council responded to the request in May 2022 and said it would assess E. It said if it decided to issue an EHC plan, it would issue the final by September 2022.
28. E stopped attending School 1 in June 2022 because of school related anxiety. Mrs D updated the Council.
29. The Council issued a draft EHC plan in August 2022.
30. In September 2022, Mrs D sent the Council her proposed amendments to E’s plan and asked for a co-production meeting. The Council considered her request and asked the educational psychologist if she would attend. Mrs D told the educational psychologist School 1 did not know they had drafted an EHC plan, and she wanted it to remain this way. The educational psychologist told Mrs D and the Council her attendance at a co-production meeting would not be useful if School 1 was not also present. The Council decided not to hold a co-production meeting because it and Mrs D would be the only attendees. It told Mrs D it would consider the amendments she requested and issue an amended plan.
31. The Council issued a second draft EHC plan at the end of September 2022.
32. Between September and December 2022, the Council consulted with education providers.
33. The Council considered E’s case at its county moderation panel twice in November 2022. The Council said it believed E’s needs could be met at a mainstream setting. At both panel’s the Council presented E and her parent’s views, and responses from educational providers to its consultations. At the first panel, attendees asked for more information about why the mainstream schools consulted felt they could not meet E’s needs. This information was provided at the second panel and attendees decided the Council should name a mainstream school in E’s EHC plan.
34. Mrs D complained to the Council in December 2022. Of relevance to this investigation, she complained it:
• had not finalised E’s EHC plan.
• refused to hold a co-production meeting.
• did not consider all available evidence at its county moderation panel.
35. She told the Council because of its actions, E remained without an educational placement.
36. The Council issued E’s final EHC plan in December 2022. It named School 2, a mainstream school, in section I. Mrs D appealed sections B, F, and I to the SEND tribunal.
37. School 2 provided one-to-one home tuition and speech and language therapy.
38. The Council responded to Mrs D at stage one of its complaint procedure in January 2023. Of relevance to this investigation, it:
• apologised for a five-day delay issuing E’s final EHC plan and upheld this part of her complaint. It said it would provide staff with extra training and support to meet statutory timescales.
• said it did not believe a co-production meeting would have led to further amendments to E’s EHC plan.
• advised it considered all available evidence at its county moderation panel.
39. Mrs D told the Council she was unhappy with its response and asked it to consider her complaint at stage two of its complaint procedure.
40. The Council responded at stage two in May 2023. It apologised for its delayed response. Of relevance to this investigation, it said:
• it could not say what reports the county moderation panel considered but confirmed members had access to E’s file before the meeting.
• it was disappointing that it had not been possible to hold a co-production meeting but it was aware that professionals attended a meeting in May 2022 to try to resolve some of the concerns she had.
41. The SEND tribunal made its final order in June 2023. It ordered the Council to name School 3, an independent special school, in section I of E’s EHC plan and amend sections B and F. The Council issued E’s final amended EHC plan in July 2023 within five weeks of the SEND tribunal order.

Analysis

42. E’s school asked the Council to assess her for an EHC plan in April 2022. The Council should have responded to the request in six weeks, but it delayed doing so by two weeks, this delay was fault. The Council should have issued E’s final EHC plan 20 weeks from the date of the request; August 2022. The Council did not issue E’s final EHC plan until December 2022, a delay of 17 weeks. The 17-week delay spanned 14 term time weeks. This delay was fault. The Council’s fault frustrated Mrs D’s right to appeal to the SEND tribunal, and ultimately, delayed E accessing a specialist school placement.
43. The Council must make its officers available for a meeting with the child’s parent or the young person on request if they wish to discuss the content of the draft EHC plan. Mrs D asked for a co-production meeting and the Council should have held one regardless of whether School 1 or the educational psychologist would attend. The Council did not, and this was fault. This fault meant Mrs D lost the opportunity to discuss E’s EHC plan and the amendments she wanted to the plan with the Council.
44. It is unclear from the minutes of the county moderation panel what reports it considered when it decided E’s case. In response to enquiries, the Council said panel members had access to the reports but there is no evidence the panel considered them. This was fault. The fault created uncertainty for Mrs D about what information the panel used to make its decision and therefore, whether there was any fault in its decision making.
45. The Council delayed responding to Mrs D at both stages of its complaint procedure. At stage one, there was a short delay of seven days. At stage two, there was a considerable delay of over three months. These delays put Mrs D to unnecessary time and trouble.

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Agreed action

46. Within one month of the final decision, the Council will:
• Pay Mrs D £1600 for the impact of the Council’s delay issuing E’s final EHC plan on E’s education.
• Pay Mrs D £300 for the avoidable distress, including uncertainty, lost opportunity, and frustration, caused by the Council’s faults.
• Pay Mrs D £200 for the avoidable time and trouble she was put to because of the delays in the Council’s complaint responses.
• Remind county moderation panels to minute the evidence considered during decision making.
• Remind staff in the SEND service of the statutory timescales, including the timescales for responding to requests for an EHC plan, assessing children for an EHC plan, and finalising EHC plans.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation and uphold Mrs D’s complaint. Mrs D and E were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman