Summary: Mrs X complains about how the Council handled her son, S’s, Education, Health, and Care Plan assessment. Mrs X said the Council’s failures caused avoidable stress to her, but also S who was upset about not having a school place in September 2023. The Council was at fault for the delays in assessment, securing a school place and responding to Mrs X’s complaint. The Council offered her a financial remedy, and we consider it to be in line with our guidance.

The complaint

1. Mrs X complains that since September 2022 when she applied for an Education, Health, and Care (EHC) Plan assessment for her son, S, the Council failed to:
• complete the assessment in the statutory 20 weeks and issue S’s final EHC Plan;
• seek an Educational Psychologist’s (EP) input until 19 weeks into the assessment;
• secure a suitable school place for S in time for September 2023; and
• consider and reply to her complaint about the delays in the assessment process.
2. Mrs X said the Council’s failures caused avoidable stress to her, but also S who was upset about not having a school place in September 2023.
3. Mrs X would like the Council to apologise and improve its services so this does not happen to another family and pay her for the stress she and S went through.

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The Ombudsman’s role and powers

4. 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)
5. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
6. 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.
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
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)

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Mrs X and the Council have 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

Education, Health, and Care Plan (EHC Plan)

11. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to local authorities about how they provide support for children and young people with SEN.
12. Most children with SEN have those needs met by schools and early years settings. Those bodies have a responsibility to identify children with SEN, sometimes with the help of outside specialists.
13. If a school or parent has concerns that, despite a school’s SEN provision, a child is not making the expected progress, they can ask a local authority to consider whether it needs to carry out an assessment of EHC needs.
14. An EHC Plan is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health, and social care.
15. The Council must respond to all requests for an EHC Plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHC Plan must take no more than 20 weeks.
16. Where there are exceptional circumstances, it may not be possible for the Council to meet the timescales. The Council should tell the child’s parent or the young person of the reasons for any delays.
17. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 
• the child’s educational 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. 
18. The Regulations set out the minimum information and advice the Council should seek in an EHC assessment. A parent or young person can ask the Council to seek advice from anyone within health, education, or social care and, provided it is a reasonable request, the Council must do so. It is more likely to be reasonable if that professional is already involved with the child.
19. The Regulations say the advice should be provided within six weeks, which is also the timescale for a local authority deciding whether it needs to draw up a Plan.
20. The Code says a council:
• must ensure the child’s parents are fully included from the start and consulted throughout the production of the Plan; and
• should carry out timely, well-informed assessments.
21. The Council can only issue an EHC Plan after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a Plan or not.
22. If the Council decides to issue a Plan, it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request, but it should be able to explain why the EHC Plan meets the needs of the child.
23. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHC Plan as these are appealable to SEND Tribunal.
24. The Ombudsman can look at delay in the assessment and creation of an EHC Plan as well as failure by the Council to deliver the provision within an EHC Plan, as long as they are not connected to, or a consequence of, an appeal.
25. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the Plan. The local health care provider will have the duty to deliver the health care provision.

What happened

26. Mrs X asked the Council to assess S’s needs for an EHC Plan in late September 2022. S was three years old and was due to turn five in October 2023. This means he reached a compulsory school age at the end of December 2023. At the time of Mrs X’s request for an assessment S was attending two nurseries.
27. The Council’s records show it agreed to assess S and requested input from professionals in early October 2022. This included the EP. However, the Council sent the request through internal post, and the EP service did not receive it.
28. In early February 2023 Mrs X asked the Council for an update because she had not heard anything following the Council’s acknowledgment of her assessment request. Mrs X told us that the caseworker told her the Council was waiting for a reply from an EP and then it would decide if it would issue an EHC Plan for S.
29. Mrs X told the Council that it had already missed the legal deadline to tell her if it would issue an EHC Plan. She asked when the assessment would take place and the case officer said she did not know. The case officer gave Mrs X a contact for the EP team, and when she enquired, the EP service said they did not have a referral for S.
30. In mid-February 2023 Mrs X complained to the Council about the delay in the EHC Plan assessment and the lateness of the EP referral.
31. Mrs X contacted the Council again in mid-April. She complained about:
• the delays in the assessment process; and
• allocation of a mainstream primary school place for S as she was worried he would not be able to attend it because it did not meet his needs.
32. In early May 2023 the Council told Mrs X that S was on the list for a place at a special school. A couple of weeks later the Council issued S’s draft EHC Plan. Mrs X disagreed with the contents of the EHC Plan, and she told the council about this.
33. In late July Mrs X chased the Council for an update about S’s school place, as he was due to transfer to a primary school in September 2023. The Council told Mrs X that it had not decided yet, and as soon as it did it would issue S’s final EHC plan.
34. In the same month the Council told Mrs X it would reply to her complaint by early August 2023. This did not happen until the end of the month. In its reply the Council said:
• it was sorry for the delay in securing S’s school place and the delay in response to Mrs X’s complaint;
• the delay caused Mrs X uncertainty and avoidable time and trouble, and it offered to pay her £400 to recognise the uncertainty and further £100 for the avoidable time and trouble she experienced;
• it had already issued S’s final EHC Plan now; and
• Mrs X could appeal the EHC Plan if she wanted to.
35. In late August the Council found a school place for S to begin the term after he turned five and became of compulsory school age. It told Mrs X about this and said that S’s nursery agreed for him to attend until he transfers into his primary school.
36. Mrs X remained unhappy with the Council’s response, and she asked us to consider it.

Analysis

EHC Plan assessment and EP advice

37. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code, and we are likely to find fault where there are significant breaches of timescales.
38. Mrs X asked for an EHC assessment at the start of September 2022. The Council decided to carry out an assessment and issued a decision letter in early October 2022, so it took a week. The Code allows councils six weeks from the date of a parental request so there was no delay in the Council accepting the assessment and issuing a notice to Mrs X.
39. The Code says EP reports should be completed within six weeks of a request. The SEN team requested EP advice at the same time as it decided to assess S. This means the EP’s report should have been available by mid November 2022 to comply with the six-week timeframe.
40. In mid-February 2023 Mrs X chased the Council for an update. It was because of her contact the Council checked when the EP advice would be available and realised the EP service did not get its original request from October 2022. This is fault. We would expect the Council to have chased this up sooner than February 2023, considering the advice was due in November 2022.
41. The Council re-requested the EP assessment in February. It was not completed until the middle of April 2023 – a delay of five months from the original request and a delay of three weeks following the Council’s February 2023 second request. The delays were not in line with the Code and are fault.
42. The Council also failed to complete the process and issue a final EHC Plan within 20 weeks from the date of Mrs X’s request at the end of September 2022. It should have issued S’s final Plan around mid-February 2023. The final EHC Plan was not available until end of August 2023. This was a delay of six months which is fault. It had an adverse impact on Mrs X because it delayed her right of appeal to the SEND Tribunal and caused avoidable distress and time and trouble chasing officers up. It also meant there was a loss of SEN provision for S because he could have received the tailored provision on an EHC Plan yet to be finalised.
43. The records suggest Mrs X was chasing officers in the SEN team many times for updates, that she did not always get substantive replies and any replies did not give meaningful updates. Our view is the Council should have given Mrs X a rough timescale for when S’s case would reach the top of the EP’s waiting list and an estimated date for the draft EHC Plan, if appropriate. The failure to give a rough timeframe was poor communication and was fault.
44. The Council told us that since early 2023 it has agreed contracts with two additional providers to help address the shortfall of EPs.
45. The Council continues to work closely with external organisations such as the Department for Education (DfE) on service improvements. This includes the September 2023 service re-design to improve the Council’s timeliness when processing EHC Plan assessments.
46. We decided further service improvements were not necessary as the Council is already implementing an extensive improvements plan across its SEN services.

September 2023 school place

47. The Council’s records show that between May 2023 and August 2023 it consulted seven schools to check if they would be able to meet S’s needs. Some of the schools, including Mrs X’s preferred school for S, did not reply to the Council’s consultations, and we have not seen evidence of the Council chasing the schools for responses. We consider this to be fault.
48. In late August 2023 the Council held a meeting with a school it had originally consulted with in May and secured a place for S beginning in January 2024. We do not consider the Council was at fault for securing S’s school place from January 2024, because he was not of compulsory school age until 31 December 2023. It was only then when the Council had a duty to ensure he had access to a full-time education, which it did.
49. However, we consider the Council was at fault for the delay in meeting the school. The Council originally consulted this school in May 2023, which means it should have responded to the Council’s consultation by late June, but it did not. The Council did not chase its response to the consultation, and we consider this to be fault.
50. The school responded in early July 2023, but the Council did not meet with it until late August 2023. We consider this to be fault. We cannot say the Council would have secured a school place for S in September 2023 had it meet the school sooner. However, Mrs X was uncertain about what was going to happen in September 2023, and this caused her avoidable distress and uncertainty.
51. The Council accepted that it took too long to secure S’s school place and it offered £400 to Mrs X to recognise the avoidable uncertainty the delay caused her. We consider the Council’s offer to be sufficient and in line with our guidance on remedies.

Complaint handling

52. The Council accepted that its complaint response was late.
53. The Council considered it could not address Mrs X’s complaint fully until it finalised school arrangements for S. Once it knew what was going to happen, it replied to Mrs X and offered her a remedy of £100 for the time and trouble she experienced in having to chase her complaint.
54. We consider the Council’s proposed remedy of £100 sufficiently addresses the avoidable time and trouble Mrs X experienced because of its actions.

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Agreed action

55. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X for its failure to complete S’s EHC Plan within the statutory time scales, the delay in securing his school place and the distress and frustration this has caused her. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this in making its apology;
• pay Mrs X £500 (£400 for uncertainty and £100 for time and trouble) it offered to remedy the distress, frustration and unnecessary time and trouble she experienced.
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. Subject to further comments by Mrs X and the Council, I intend to complete my investigation. We found the Council was at fault for the delay in completing S’s EHC Plan assessment, making the EP referral, and answering Mrs X’s complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman