Summary: The complainant (Ms X) said the Council failed to respond to her request for an Education Health and Care (EHC) needs assessment for her daughter (Y) within the statutory timescales. She also complained about the way the Council handled her complaint. We found fault in all areas of this complaint. This fault caused Y and Ms X injustice. The Council has already apologised. The Council also agreed to make a payment to recognise Y’s and Ms X’s distress and review the system of handling the incoming electronic correspondence.

The complaint

1. Ms X says the Council failed to respond to her request for an EHC needs assessment for Y within the statutory timescales. She also complains about the Council’s failure to respond to her complaint.
2. Ms X said the Council’s delays caused her distress as she felt Y was not getting enough support with her education. She was concerned as Y was moving to Year six from September 2023. The lack of response from the Council meant she could not make any progress with this matter, even if it meant appealing to the 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 an injustice, 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 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.

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How I considered this complaint

6. I spoke with Ms X and considered the information she provided.
7. I considered the information the Council provided.
8. I reviewed our ‘Principles of good administrative practice’ issued in December 2018 and the Council’s leaflet ‘Comment Compliment Complaint’.
9. Ms 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 framework

EHC needs assessment

10. 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.

Complaint procedure

11. The Council’s complaint procedure is specified in the leaflet ‘Comment Compliment Complaint’ and includes:
• Acknowledgement of a complaint within three working days;
• Stage one – service resolution; the Council will provide a written response within ten working days or up to 20 working days if the complaint is complex;
• Stage two – senior level investigation; the Council will normally provide a response within 25 working days but if it is not possible it will explain why and provide another date for sending a response.

What happened

12. From the beginning of December 2022 to March 2023 the Council did not respond to correspondence from Ms X’s representative (Mr Z). This included:
• A request for an EHC needs assessment for Y sent at the beginning of December 2022;
• Pre-action protocol letter sent at the end of January 2023;
• Correspondence sent at the beginning of March;
• A formal complaint sent in the second week of March.
13. In the third week of April Mr Z complained to us. Mr Z asked us to look at Ms X’s complaint, even though the Council had not investigated it, as the Council failed to respond to any correspondence from Mr Z.
14. In the third week of May Ms X contacted the Council asking for an explanation from the Director of Children’s Services why the Council failed to respond to her request for an EHC needs assessment for Y. This correspondence was passed to the special educational needs and disabilities (SEND) team.
15. Acknowledging receipt of Ms X’s request for Y’s EHC needs assessment, the Council asked Ms X to provide Y’s details, which she did by return.
16. A few days later the Council’s legal team acknowledged receipt of Mr Z’s pre-action protocol letter sent in January 2023 and said it would respond within two weeks.
17. A day before the Council’s response to Mr Z, the Council agreed to carry out Y’s EHC needs assessment.
18. In its response to Mr Z the Council said:
• It did not receive Ms X’s request for an EHC needs assessment supposedly submitted in the beginning of December 2021;
• It received the request for Y’s EHC needs assessment submitted at the beginning of December 2022, Mr Z’s pre-action protocol letter sent in January 2023 and Mr Z’s correspondence from the beginning of March, but these documents were misfiled and did not reach the relevant teams in the Council. The Council apologised for the delays in responding to this correspondence.
• It received Mr Z’s complaint and Mr Z’s complaint to the Local Government and Social Care Ombudsman. This correspondence was also misfiled, which caused delays in responding. The Council recognised it failed to act within the required timescales and upheld Ms X’s complaint. The Council apologised for its failings.

Analysis

EHC needs assessment

19. The Council has already accepted it failed to respond to Ms X’s request for Y’s EHC needs assessment within the statutory timescales. The delay of five months is fault. It caused injustice to Y and Ms X by creating uncertainty of the Council’s position and on extra support Y might have needed when preparing for her Year six and Standard Assessment Tests (SATs). Ms X felt distressed at the complete lack of response from the Council for many months and inability to challenge the Council’s position.

Complaint handling

20. The Council failed to follow its complaint policy by not acknowledging and responding to Mr Z’s complaint. This is fault and it caused Ms X injustice. She felt frustrated by not having any way of challenging the Council’s failings within the EHC needs assessment process.
21. In its response to the pre-action protocol letter the Council explained its response to Mr Z’s communication was delayed because it misfiled his correspondence. It is very concerning this was not a single incident but happened four times. Failing to appropriately handle correspondence from the service users is contrary to the principles of good administrative practice. The Council should effectively address this issue to ensure it does not happen again.

Remedies

22. In the correspondence from June 2023 the Council accepted its failings and apologised. In view of the injustice caused to Y and Ms X as well as our concern to prevent similar failings in the future, I will recommend other remedies in addition to the apology.

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Agreed action

23. We recommend within four weeks of the final decision the Council pay Ms X £400 to remedy the distress caused to Y and Ms X by the faults identified. The Council will provide the evidence that this has happened.
24. We also recommend the Council review within two months of the final decision the way it handles the incoming electronic correspondence. The Council should provide evidence it has reviewed its system and send us a plan on how it intends to address any issues found in order to ensure all correspondence reaches the relevant teams.

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Final decision

25. I uphold this complaint. I found fault with the Council for the delay in responding to Ms X’s request for an EHC needs assessment for Y and the way it handled Ms X’s complaint. This fault caused injustice to Y and Ms X. The Council has accepted my recommendations, so this investigation is now at an end.

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Investigator's decision on behalf of the Ombudsman