Summary: Mrs X complains the Council failed to respond to her request for an Education, Health and Care Needs reassessment for her son, and failed to respond to her complaint. We find fault with the Council for failing to properly respond to her request and complaint, and for delay in dealing with her complaint. We have agreed symbolic payments for the distress and uncertainty caused to Mrs X.

The complaint

1. Mrs X complains the Council failed to:
• respond to her request for an Education, Health and Care Needs reassessment for her son Y; and
• respond to her complaint.
2. This caused frustration and uncertainty to Mrs X. She would like an apology from the Council.
3. The complaint response from the Council referred to Mrs X’s other child. She would like the Council to confirm that any record of this is amended to show this was not her request, and for the Council to inform anyone else who may have been contacted about her other child, of its error.

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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. 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. 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).
7. 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

8. I am not investigating the Council’s decision regarding the reassessment as that has a right of appeal for Mrs X to use (see paragraph six). I have investigated the failure to respond to the request.

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How I considered this complaint

9. I spoke with Mrs X and considered the information she provided.
10. I made enquiries with the Council and considered the information it provided.
11. Mrs 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 background

Education, Health and Care Plan

12. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.

EHC needs re-assessment

13. Councils must secure re-assessment of the child’s educational, health care and social care needs if requested by their parent unless:
• it has carried out an assessment or re-assessment within the period of six months prior to that request, or
• it is not necessary for the authority to make a further assessment. (Children and Families Act 2014 section 44(2), Special Educational Needs and Disability Regulations 2014 regulation 24)
14. The SEN Regulations 2014 sets out the process for carrying out EHC re-assessments and producing EHC Plans. It says:
• The local authority must notify the child’s parent or the young person whether or not it is necessary to reassess the child or young person within 15 days of receiving the request to re-assess.
• Where the local authority does not need to re-assess the child or young person the notification must also notify them of:
1. their right to appeal matters within the EHC Plan in accordance with section 51(2)(d) of the Act;
2. the time limits for doing so;
3. the information concerning mediation, set out in regulation 32; and
4. the availability of—
1. disagreement resolution services; and
2. advice and information about matters relating to the special educational needs of children and young people.

Appeal right

15. There is a right of appeal to the SEND Tribunal against a decision not to assess, reassess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.

Council’s complaints procedure

16. The Council has a three stage complaints procedure:
• Stage one – a response from the head of the relevant Council service within 20 working days.
• Stage two – a response from a director within 20 working days.
• Stage three – a final review by the Chief Executive’s office within 20 working days.

What happened

17. Mrs X’s son, Y, has special educational needs and first had an EHC Plan in February 2019.
18. Y had an annual review on 6 February 2023. Mrs X made a formal request for Y to have an Education, Health and Care Needs reassessment on the same day, as she says his EHC Plan had not been updated for five years. She did not get a response so she made a stage one complaint on 6 March, but did not name her son in the complaint.
19. On 3 March the Council emailed Mrs X with a letter and a notice to amend Y’s EHC Plan. It also said the Council turned down the request for reassessment as the annual review had just taken place and the EHC Plan was being updated as a result. The letter said Mrs X would have appeal rights on receipt of the updated EHC Plan, and went on to say her request for online schooling was rejected.
20. Mrs X responded to the email around 3 weeks later with amendments to the draft EHC Plan.
21. The Council’s complaint response on 15 March referred to Mrs X’s other son who also has an EHC Plan. On the same day Mrs X told the Council of its mistake, confirmed she was referring to Y, and chased again a week later.
22. Mrs X made a stage two complaint on 29 March as she says she still had no response to her stage one complaint or about Y’s reassessment.
23. Mrs X’s solicitors sent a letter on 3 April asking whether the reassessment request had gone to panel and what the decision was.
24. Mrs X called the mediation company and was advised the email the Council had sent was not sufficient to constitute a decision letter. She also completed an application to the Tribunal but was unable to proceed due to the lack of correct decision letter. This required lot of time and effort for Mrs X.
25. In response to our enquiries the Council said it sent the solicitors letter and the stage two complaint to the SEND service but it did not provide a timely response.
26. Mrs X’s solicitors wrote a Letter before Action on 25 April which focused on a different issue but also chased the Council’s response to the reassessment request. Mrs X then made a stage three complaint on 28 April.
27. The Council’s stage three process begins with a review of the stage two response. As there was no stage two response the Council sent this on 14 June saying the complaint was on hold while the solicitors Letter before Action was addressed. This did not address the reassessment Mrs X had requested.
28. The Council issued the final EHC Plan on the 28 July.
29. In response to our enquiries the Council said:
• Reassessment has now taken place and a new final EHC Plan was issued on 29 November;
• The SEND officer gave the reassessment decision by email on 3 March saying it rejected the request. The email from the Council outlined the appeal rights if Mrs X did not agree with the updated EHC Plan but did not set out Mrs X’s appeal rights about the assessment decision. The Council apologised for this omission but said the appeal process was outlined in the stage one response letter, however it referred to the wrong child.
• During the time of the complaints the SEND team had a large volume of work and staffing changes. It says it now has a more stable SEND team in place and has reinforced the requirement for all case activity to be logged on the case management system to support effective handovers.
30. Mrs X said she did not receive the formal decision about the reassessment until 2 August, when the Council then agreed to the reassessment.

Analysis

31. Once a parent makes a request for reassessment, the Council must provide a response within 15 days, giving details of the right to appeal (see paragraphs 14 and 15). The Council did give a response via email within this time frame, but this was included with other information, and did not state Mrs X’s right of appeal or other information stated in paragraph 14. This is fault.
32. The Council says it set out the process to appeal in its stage one complaint response, but the response was about her other child. I find fault with the Council for not clearly setting out the decision for the reassessment request with the appeal information in communication with Mrs X.
33. This means Mrs X’s appeal rights were delayed, from the date of the decision email (3 March) until the date of the EHC Plan (28 July), causing her frustration and uncertainty.
34. Mrs X did not name Y in her stage one complaint. The Council says its response in relation to her other child was “understandable” given it had recent emails referring to her other child. Mrs X says it was “obvious” it was in relation to Y, as that was the only child she had requested reassessment for. However, Mrs X did point out the mistake to the Council straight away, and the Council failed to acknowledge this. This is fault by the Council.
35. The stage two complaint response did not apologise for the delay in response (well outside the 20 days specified in the complaint procedure in paragraph 15), and did not accept it had failed to provide the correct decision letter. This is fault causing Mrs X distress and frustration, and the time and trouble of chasing a response.
36. The Council said it could not investigate the complaint due to the Letter before Action from her solicitors, but these were separable matters and the Council could have resolved the complaint by sending out the correct decision letter. This is fault by the Council causing frustration and distress to Mrs X.

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Recommended action

37. Within one month of the final decision, the Council should:
• Write a personalised apology to Mrs X for the faults identified above. We publish Guidance on Remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology recommended in my findings;
• Pay Mrs X £250 made up of:
1. £150 for time and trouble of pursuing the complaint; and
2. £100 for the distress and frustration caused to Mrs X as a result of the faults above;
• Remind staff to clearly set out decision letters along with any appeal rights when telling parents or carers of the outcome of a decision not to assess, reassess, issue or amend an EHC Plan as set out in the SEN Regulations 2014;
• Confirm any record of the Council’s mistake in noting the reassessment request for Mrs X‘s other son is amended to show this was the Council’s error, and inform the same to anyone else who the Council may have contacted.
38. We have recently recommended the Council reviews its arrangements to ensure it will respond to complaints about its SEND service in line with its published complaint’s procedure. I have therefore not made a further recommendation as we will monitor the impact of these changes through our complaints.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I find fault with the Council for failing to respond correctly to Mrs X’s request for an Education, Health and Care Needs reassessment and her complaint, and for delay in its complaint handling. I have recommended a symbolic payment for the distress and frustration caused to Mrs X as a result.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman