Summary: The Council was at fault for how it handled Mrs B’s daughter’s special educational needs assessment. There was a delay of three months, which meant she missed out on support and was late starting her new school. The Council was also at fault for how it handled Mrs B’s complaint. It has already made improvements to its service; however, it has also agreed to apologise to Mrs B, make a symbolic financial remedy to her daughter, and deliver staff training.

The complaint

1. The complainant, whom I refer to as Mrs B, complains about how the Council dealt with a special educational needs (SEN) assessment for her daughter. I refer to her daughter as C.
2. Mrs B says:
1. There was a delay to the Council’s assessment, which meant C missed out on SEN provision and was late starting her new school.
2. The Council mishandled her complaint. The process took too long, and the Council’s communication was poor. And one of the Council’s complaint respondents was unprofessional.
3. Mrs B also complains that a Council officer provided inappropriate advice about whether a special school would be suitable for C. Instead of consulting the school when Mrs B asked about it, she says the officer told her the school would be oversubscribed (without checking first). She says the Council then decided C would attend a mainstream school.
4. Mrs B says the Council’s mistakes caused her and C distress. She also says C’s education was affected. She wants compensation and wants the Council officer disciplined.

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The Ombudsman’s role and powers

5. 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)
6. The law says we cannot normally investigate a complaint when someone could have appealed to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to have appealed. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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 this decision with Ofsted.

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What I have and have not investigated

10. I have investigated Mrs B’s complaints about the delay to the needs assessment and about the Council’s complaint-handling.
11. I have not investigated Mrs B’s complaint about the Council officer’s response to her query about the special school. This is because the action taken by the officer was inseparably linked to the Council’s ultimate decision to name a mainstream school for C.
12. Mrs B had a right of appeal to the SEND Tribunal about the school named by the Council. It does not appear to be unreasonable to expect her to have used that right. Consequently, I cannot investigate this part of her complaint.

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How I considered this complaint

13. I considered information from Mrs B and the Council.
14. I considered:

• The government’s statutory SEND code of practice.
• The Council’s complaints procedure.
• The Ombudsman’s guidance on remedies.

15. Mrs B 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 happened

C’s needs assessment

16. In June 2022, Mrs B applied to the Council for C to have an education, health and care (EHC) plan. This is a document which sets out a child’s SEN and the arrangements which should be made to meet those needs.
17. In September, Mrs B asked the Council whether it would issue an EHC plan for C. The Council told her it was waiting for a psychologist’s report.
18. By mid-November, the psychologist’s report had been completed. Mrs B asked the Council for an update again. It confirmed that it would issue a plan for C.
19. In early January 2023 the Council issued a draft plan and asked Mrs B for comments. It also sent consultations to a number of schools.
20. In February the Council issued C’s final EHC plan, explaining how it would meet her needs. This included:

• Some one-to-one or small group support.
• Targeted programmes.
• A key worker.
• Support from a teaching assistant in lessons.
• Teachers trained to deal with mental health and social communication difficulties.

Mrs B’s complaint

21. In February 2023 Mrs B complained about delays to C’s needs assessment. The Council told her it would respond by mid-March.
22. The day after the proposed deadline, Mrs B contacted the Council and asked when she would receive a response.
23. The Council responded two weeks later. It accepted that there had been a delay to C’s needs assessment. It said this had partly been because of a delay to the psychologist’s report, and partly because its SEN panel had delayed naming a school for C. It apologised.
24. Mrs B was dissatisfied and, in late March, asked for a senior officer to review her complaint. The Council told her it would respond by late April.
25. In early May, Mrs B asked the Council when she would receive a response. It said it would respond as soon as possible.
26. In late May, after Mrs B had contacted the Ombudsman, the Council responded. It reiterated the findings of the previous complaint respondent and apologised again for the delay to C’s needs assessment.

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What I found

Guidance and procedure

27. The SEND code of practice says a child’s needs assessment and EHC plan development must take no longer than 20 weeks. This period is from the date the assessment is requested to the date the final plan is issued.
28. The Council’s complaints procedure says it will respond to complaints at the earliest possible time. In general, this will not exceed the standard target of four weeks.
29. This target date can be extended if necessary. The complainant will be informed as soon as possible and provided with a new target.

My findings

Complaint A: the needs assessment

30. Mrs B requested an assessment in June 2022. This means the Council should have issued the plan by early November. It did so in February. This was a three-month delay, for which the Council was at fault.
31. C was being educated at home in the interim – as she had been for over a year – so she received some education despite the delay.
32. However, as she did not have an EHC plan before, this meant there was a three-month delay to all her SEN support.
33. The delay also meant she could not start her new school until May 2023. As this was her first year of secondary education, it was an important year in which to have missed so much time in school.
34. It is unlikely that, as C is now in full-time education, the Council would be able to deliver additional SEN support to make up for what she missed during the period of delay. So it should offer Mrs B a symbolic financial remedy on C’s behalf to recognise C’s injustice.
35. As the Council has already apologised for the delay, I consider that a satisfactory recognition of Mrs B’s distress. So I will not recommend any further personal remedy for Mrs B.
36. Furthermore, the Council has provided details of improvements it has made to its service since the delay to C’s EHC plan, so I will not recommend that it makes additional improvements.

Complaint B: the Council’s complaint-handling

37. There is no evidence that anyone dealing with Mrs B’s complaint was obviously unprofessional.
38. However, over the course of the complaint, the Council was responsible for a month and a half of delays. It missed more than one of its own self-imposed deadlines without letting Mrs B know in advance, and she had to send emails to find out what was happening.
39. This was fault by the Council. It should now apologise to Mrs B to recognise the time and trouble she went to trying to get responses to her complaint.
40. As similar mistakes were made on both stages of the complaint, the Council should also deliver staff training to ensure future complaints are dealt with in accordance with its procedure.

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Agreed actions

41. Within a month, the Council has agreed to:

• Apologise to Mrs B to recognise the time and trouble she went to trying to get responses to her complaints.
• Make a symbolic payment of £1,000 to Mrs B, on C’s behalf, to recognise C’s injustice from the delay to her needs assessment.

42. Within three months, the Council has agreed to deliver refresher training on its complaints procedure to all its staff who handle and respond to complaints. This training will ensure they are fully aware of the Council’s responsibility to meet timescales and communicate effectively with complainants.
43. The Council has agreed to provide us with evidence it has completed these actions.

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Final decision

44. The Council was at fault for how it handled C’s needs assessment and Mrs B’s complaint.

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Investigator's decision on behalf of the Ombudsman