Summary: There was fault in the Council delaying issuing an Education, Health and Care plan for Mrs X’s son. Those delays caused Mrs X an injustice because of uncertainty about her son’s special education provision and the school he would go to. The Council have already apologised for delays and have agreed to pay a financial remedy to Mrs X, to properly recognise her injustice.

The complaint

1. Mrs X said the Council delayed finalising her son’s Education Health and Care plan (EHCP) after their school asked it to carry out an EHC needs assessment. Mrs X said this meant her son (Y), did not have a named school to go to when the new school term started in September 2023.
2. Mrs X said the delays will have hindered Y’s development at an important time in his schooling and socialising with his peer group. Mrs X said it delayed giving her a right of appeal and this too caused uncertainty.

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The Ombudsman’s role and powers

3. 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)
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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
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. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
8. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
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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How I considered this complaint

10. I spoke to Mrs X and considered the information she provided.
11. I considered the Council’s comments and the information it provided.
12. I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

Special Education Needs

14. A child with special educational needs may have an Education, Health and Care (EHC) plan. 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.
15. There is a right of appeal to the SEND Tribunal 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.
16. 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.

Appeal rights

17. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened

18. In December 2022, Mrs X’s school asked the Council to assess Y for an EHCP, and in late January 2023, it agreed to assess Y’s SEN. The Council got advice from an Educational Psychologist (EP) in May.
19. For the Council to have completed the EHCP process in line with statutory guidance, it should have issued Y’s final EHCP by late April 2023.
20. Mrs X told me she chased the Council for a draft EHCP in late June and early July and got no response. After this she made a formal complaint. The Council replied to her complaint and apologised for the delays. It also told Mrs X there had been a high demand for EHC needs assessments and a lack of capacity for EP’s. Because of this it said it was unable to comply with the statutory timescales.
21. In late August the Council sent Mrs X a draft EHCP and then issued a final plan in mid-October. Mrs X told me she lodged an appeal with the SEND Tribunal. Mrs X said she is going to appeal the Special Education Provision and the school the Council named.

My findings

22. The guidance says a Council has 20 weeks to issue an EHCP from when it receives a request for an EHC needs assessment. This meant the Council should have issued a final plan by late April 2023 and it did not do so until mid-October. This means it is late by nearly six months and that is fault.
23. This fault caused Mrs X an injustice. It not only delayed her right to appeal the school but left her with avoidable uncertainty, over a long period, about what school her son might go to. The delays and uncertainty have also left her with the avoidable distress and concern about the impact this has had on Y’s development and social mixing.
24. The Council have apologised for these delays already and that is appropriate. I recommended a financial remedy to the Council, and it agreed it would pay this to Mrs X, to fully recognise her injustice here.
25. Now that the Council has issued a final EHCP for Y, Mrs X has her right to appeal to the SEND Tribunal as she disagrees with the special educational needs and provision, as well as the school specified. As a result, I have not recommended a payment for any potential loss or delay in special educational provision to Y. This is because the EP assessment and support set out in any final EHC Plan, should identify the special educational support Y now needs. If she feels it does not, this forms part of her appeal to the SEND Tribunal.
26. We recently asked the Council to show how it would improve their service in this area in a similar case. In that case the faults arose because of a shortage of EP’s and a high demand for EHC needs assessments. I have seen the evidence the Council sent us which is an appropriate response, and it will address Mrs X’s concerns about delays and SEN caseworker contact, so I will not recommend anything further.

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Agreed action

27. Within one month of the final decision, the Council have agreed to pay Mrs X £600 for the distress and uncertainty in delaying issuing Y’s EHCP.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. There was fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman