Summary: Mrs X complains the Council unreasonably delayed issuing the Education, Health and Care Plan (EHCP) for Child Y and refused to consider her complaint. This meant Child Y was without specialist support and education. The Ombudsman finds fault with the Council for delaying the EHCP, failing to consider the complaint and for how it managed communication about the EHCP. The Council has agreed to pay financial remedies and carry out service improvements.

The complaint

1. Mrs X complains:

• the Council failed to adhere to the statutory timescales during her child’s EHC needs assessment, and
• the Council did not suitably communicate with her during the process, and as a result she was forced to issue a Pre-action letter.

2. Mrs X says this meant her child was without the support they needed and has remained without access to education.

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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. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
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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How I considered this complaint

7. I considered Mrs X’s complaint and information she provided. I also considered information from the Council.
8. I considered any comments received from Mrs X and the Council on a draft of my decision.

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What I found

Legislation and guidance

EHCP

9. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This 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 education or name a different school. Only the tribunal can do this.

Timescales and process for EHC 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;
• 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;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Gathering advice for assessments

11. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:

• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

12. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
13. Those consulted have a maximum of six weeks to provide the advice.
14. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)
15. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

What happened

16. Mrs X applied for an EHC needs assessment for her child, Child Y, in November 2022.
17. The Council agreed to carry out an assessment in January 2023 and sent out consultations to other professionals, including its Educational Psychology (EP) service.
18. In February 2023, Mrs X followed up with the Council and the EP service. She asked why Child Y had not yet had an assessment, despite the EP service having a deadline of six weeks from the date the consultation was sent out.
19. The EP service told the Council it was experiencing delays and backlogs and hoped to assess Child Y soon. Mrs X told the Council she had already paid for a private EP to assess Child Y and said the Council could use this report. The Council said it could not accept the report as it was carried out by someone without the correct qualification.
20. Mrs X initially complained to the Council in February 2023. She complained about the delay in the EHC needs assessment and with the EP service. The Council told Mrs X it would investigate her complaint and provide a response.
21. The EP service assessed Child Y in April 2023 and sent the information to the Council on 21st April 2023.
22. The Council initially told Mrs X on 28th April 2023 that it would not be issuing an EHCP. It told her this via phone call and did not send a decision letter. Mrs X expressed that she would be challenging this decision at tribunal but that she required a decision letter to be able to do so. She also told the Council that Child Y was out of school because of health reasons and would not be returning to education before September 2023, where they would need a specialist placement.
23. The Council later changed its mind about issuing an EHCP, and on 12th May 2023 told Mrs X it would issue an EHCP.
24. The Council issued the draft EHCP on 26th May 2023 for comments and issued the final EHCP on 26th June 2023. In the EHCP, the Council did not name a specific school, but instead said the placement should be a “mainstream primary school”.
25. Mrs X complained to the Council on 31st May 2023. In her complaint she said

• the Council had not responded to her previous concerns about failing to meet statutory timescales,
• the Council had not considered her private EP report and insisted on seeking one of its own which delayed the process, and
• the poor communication and delay had meant she had to appoint a legal representative and issue a pre-action letter.

26. The Council responded to the complaint on 22nd May 2023. It told Mrs X that it would not consider her complaint under the complaints process as it was being considered “under the legal process”.
27. In July 2023, Mrs X started tribunal proceedings for the naming of a placement and other sections of the EHCP.
28. Between June 2023 and August 2023, the Council worked with Mrs X to identify alternative provision for Child Y to start in September 2023. It also sent out consultations to other schools with a view to Child Y starting from January 2024.
29. Child Y started at the alternative provision placement in September 2023, and attended assessment and transition days for a full-time placement from January 2024.
30. Mrs X remained unhappy and bought her complaint to the Ombudsman.

Analysis

EHC needs assessment

31. Mrs X asked the Council for an EHC needs assessment on 22 November 2022. The Council had 20 weeks from this date to issue the EHCP, if it was going to issue one. This meant the EHCP should have been issued by 11th April 2023. The Council issued a draft EHCP on 26th May 2023, and the final EHCP on 26th June 2023, a delay of approximately 11 weeks.
32. The Council told Mrs X this was because of a shortage of EP’s and a backlog of EP assessments.
33. I accept the problems the Council has had in finding an EP, but it is the Council’s duty to ensure it has enough resources in place to meet the statutory timescales. The delay in the EHCP is fault as a result of service failure by the Council.
34. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to recognise the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. Our guidance on remedies says a moderate symbolic payment may be appropriate to remedy uncertainty caused by fault.
35. We have upheld several complaints against councils about delayed EHCP assessments caused by lack of EP input in the last year. In response to my enquiries, the Council has set out how it seeking to recruit more Educational Psychologists. It also explained the steps that it is taking in the interim to increase EP capacity and reduce waiting times. I am satisfied the Council’s actions to improve educational psychology capacity are the most suitable service remedy in this case, however it does not recognise the personal injustice to Child Y.
36. There is service failure by the Council in delaying the EHCP. If the Council had acted without delay, it would have issued the EHCP in April 2023. This caused uncertainty and loss of opportunity for support to Child Y, and delayed Mrs X’s appeal rights to tribunal. The Council should pay Mrs X a financial remedy for every month that it delayed issuing the EHCP until it issued the EHCP and gave Mrs X her appeal rights to tribunal.
37. Part of Mrs X’s complaint is the Council refused to consider her private EP report. The Council told Mrs X the report did not meet the criteria to be considered as the person who carried out the report was not suitably qualified. I do not find fault with the Council in this regard. It was up to the Council to decide if it would accept the report. It has been able to show it considered the report and gave reason why it could not accept it.

Loss of education

38. Part of Mrs X’s complaint is that Child Y has remained without access to education because of the delay by the Council in issuing the EHCP.
39. The communication between Mrs X and the Council shows that Mrs X was clear in her communication that Child Y would not be returning to education before September 2023 for their own wellbeing. Mrs X had sought a medical certificate to support this. Therefore, on balance I am satisfied that if the Council had offered alternative provision before September 2023, it is unlikely Child Y would have attended.
40. The Council worked with Mrs X to put alternative provision in place for Child Y from September 2023 while it found a suitable permanent placement for him to attend that could meet his specific needs. Before commissioning Mrs X’s preferred alternative provision, the Council offered alternative provision in a mainstream setting which Mrs X did not feel was suitable.
41. I appreciate Mrs X feels that if the Council had not delayed the EHCP it would have been able to name a placement for Child Y from September 2023. However, it would be speculative to say this action would have happened. Child Y has had access to suitable provision in the interim, and I am satisfied they have not been caused injustice.

Communication and complaint handling

42. Part of Mrs X’s complaint is the Council did not reasonably communicate during the EHC needs assessment or consider her complaint under the complaints process. This caused her to appoint a legal representative and issue a pre-action letter.
43. I have reviewed the communication between Mrs X and the Council. I agree the communication between the Council and Mrs X was confusing at times. There were occasions when the Council retracted its actions or did not clarify information in a timely manner. There were also occasions where the Council did not send decision letters. This was fault by the Council causing uncertainty and confusion to Mrs X.
44. The Council at first told Mrs X it would investigate her complaint in February 2023, but failed to send a response. When Mrs X complained again, it told her it would not consider her complaint as it was already being considered through its legal process. This was fault by the Council. Mrs X has started the process to appeal the EHCP at the tribunal, however the tribunal does not deal with delays in the EHCP and poor communication, which is a large part of Mrs X’s complaint.
45. The Council should have considered the parts of Mrs X’s complaint that she was not appealing at the tribunal under its complaints process. To not do so was fault, causing further distress to Mrs X.
46. I cannot say the Council’s poor communication resulted in Mrs X incurring legal fees. It was Mrs X’s choice to appoint a legal representative and pursue a pre-action letter. Mrs X also had the choice to complain to the Ombudsman to try and resolve the issues, which she has done. I understand Mrs X is also seeking to recover the costs of additional reports needed for the tribunal. I cannot consider any costs associated with the tribunal, as any information considered by the tribunal is outside of the Ombudsman’s jurisdiction.

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Agreed action

47. Within four weeks the Council has agreed to

• Write to Mrs X and apologise for the fault identified above.
• Pay £300 for the delay in issuing the EHCP. This is calculated at £100 per month until Mrs X was given her appeal rights with the final EHCP.
• Pay £200 for the distress and uncertainty caused to Mrs X as a result of the poor communication, delay in appeal rights and refusal to consider the complaints under the complaints process.
• Remind staff of the importance of communicating decisions in writing, as not to delay appeal rights to tribunal.
• Providing training to complaint staff about the scope of the tribunal and how to respond to complaints where parts of the complaint are appealable to tribunal.

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

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Final decision

49. I have completed my investigation. I find fault with the Council for the delays in issuing the EHCP, how it managed communication and for refusing to consider the complaint under the complaints process.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman