Summary: Mrs X complained the Council delayed issuing her son, G’s Education, Health and Care (EHC) plan, failed to properly consult with her preferred choice of school, and about the content of the final plan. The Council delayed issuing G’s final EHC plan by two months following the EHC needs assessment. The Council agreed to make a payment to Mrs X to acknowledge the injustice this caused. The Council has now named Mrs X’s preferred choice of school for F following mediation. Mrs X has appealed the content of the EHC plan to the SEND tribunal and so I have not investigated those points further.

The complaint

1. Mrs X complained about the Council’s handling of her child, G’s Education, Health and Care (EHC) needs assessment and the final plan. Mrs X said the Council delayed issuing G’s final EHC plan and then failed to consult with her preferred choice of school.
2. Mrs X said she felt forced into paying for private assessments and wants the Council to amend the final EHC plan to name her preferred choice of school.

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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 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)
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 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

6. I spoke to Mrs X about her complaint and considered information she provided.
7. I considered information from the Council.
8. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

9. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
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 Code is based on the Children and Families Act 2014 and the SEND 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;
• if, following the EHC needs assessment the Council decides not to issue an EHC plan then it must notify the parent/young person within 16 weeks of the original EHC needs assessment request. In doing so the Council must provide the parent or young person with their right of appeal to the SEND tribunal.
11. Parents or young people have a legal right to request that a particular school or college is named in an EHC plan (or to express a preference for an independent school, college or other institution).
12. The only reason the local authority can refuse the request is if:
• The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of the child or young person; or
• The attendance of the child or young person would be incompatible with the provision of efficient education for others; or
• The attendance of the child or young person would be incompatible with the efficient use of resources.
13. 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. The appeal can be against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. 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 EHC plan has been issued.
14. 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).
15. Mediation is a more informal way of resolving disputes around the content or named placement in the EHC plan. In most cases, parents/carers must consider mediation before appealing to the tribunal.

What happened

16. Mrs X has a son, G who was due to begin school in reception in September 2023. G was being assessed for autism and has needs around communication and social interaction.
17. In October 2022 Mrs X asked the Council to carry out an EHC needs assessment for G with a view of obtaining an EHC plan for when he started school in September 2023. The Council agreed to carry out the EHC needs assessment at the end of November 2022. In line with statutory timescales this meant the Council should have issued the final EHC plan by the end of February 2023.
18. As part of the process Mrs X asked the Council to consult with and name a special school, School A for G in his final EHC plan. Mrs X also put forward School B as a mainstream option.
19. The Council issued G’s draft EHC plan in April 2023 which provisionally named the mainstream school, School B in section I. Mrs X complained to the Council about the draft EHC plan. She complained:
• The Council was intending to name School B despite there being insufficient funding available to meet G’s needs.
• The Council had not consulted with School A despite Mrs X’s request to do so.
• There was Inadequate Speech and Language (SALT) provision in the plan.
• The Council had failed to issue G’s final plan within statutory timescales which was delaying her right of appeal to the tribunal.
20. Mrs X requested the Council issue G’s final EHC plan without delay. Mrs X said the lack of SALT provision means she would have to commission a private report.
21. The Council issued G’s final EHC plan at the end of April naming School B as his placement. Mrs X began mediation with the Council.
22. The Council responded to Mrs X’s complaint at the end of May 2023. It apologised for the delay in completing G’s EHC needs assessment and issuing the final plan. The Council said G’s named placement was discussed at a recent mediation meeting and it was following up on the mediator’s action plan.
23. Mrs X remained unhappy and complained to us. She remained unhappy the Council did not properly consult with School A and did not provide a lawful reason not to place him there. Mrs X said she felt forced into paying for a private SALT assessment because the final plan contained out of date information. Mrs X said she wanted more specialist provision and the plan amended to reflect her private SALT report. She also wanted the Council to name School A.
24. Following mediation, the Council amended G’s EHC plan in August 2023 to name School A as his placement. Mrs X told us she had appealed against sections B and F to the SEND tribunal.

My findings

25. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
26. Following Mrs X’s request for an EHC assessment the Council should have issued G’s final EHC plan by the end of February 2023. It did not do so until the end of April which is a delay of around two months. That delay was fault and delayed Mrs X’s right to both mediation and appeal to the SEND tribunal. It also caused her distress and uncertainty for which the Council has apologised. I have made a further recommendation below to remedy the injustice the delays caused Mrs X.
27. I am aware from other similar cases that the Council has a large backlog of EHC needs assessment cases and it is actively recruiting staff to address these delays. I have therefore not made any further service improvement recommendations.
28. Following the final EHC plan in April 2023 Mrs X was unhappy the Council named School B on the plan. She says the Council did not provide her with a legal reason (as outlined in paragraph 12) for not naming School A. Whilst I acknowledge Mrs X’s frustration with the process, the injustice arising from the fault was the dissatisfaction with the named placement in section I. As explained in paragraphs 13 and 14, the correct process to resolve disputes around section I is to appeal to the SEND tribunal. In any case, Mrs X resolved the matter using mediation and the Council named School A in time for G to start there in September 2023. For these reasons I have not investigated Mrs X’s concerns around how the Council consulted with schools any further.
29. Mrs X’s remaining concerns lie with the content of the EHC plan, specifically around SALT and the Council not including the content of Mrs X’s private report in the final plan. The Ombudsman cannot direct changes or amendments to section F of the EHC plan, only the SEND tribunal can. Mrs X has already appealed to the SEND tribunal against sections B and F which means these aspects are now outside of our jurisdiction, therefore I have not investigated it further.

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Agreed action

30. Within one month of the final decision the Council agreed to pay Mrs X £200 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s failure to issue G’s final EHC plan in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan in February 2023 until the date it issued the final plan in April 2023.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I completed this investigation. I found fault and the Council agreed to my recommendation to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman