Summary: Mr X complained about delays and missed deadlines when the Council assessed his daughter, Y’s, special educational needs. The Council was at fault for delays, poor communication, and lack of proper oversight of the assessment process.

The complaint

1. Mr X complained about delays and missed deadlines when the Council assessed his daughter, Y’s, special educational needs. He said the Council failed to provide its special educational needs panel with full details about Y’s needs.
2. Mr X said this meant there was a delay agreeing a specialist school and Y was in an unsuitable school in the meantime which could not meet her needs.
3. Mr X also complained the Council lied during the process about consulting a special school and altered reports from the Speech and Language Therapy service.

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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 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. 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

9. I have investigated matters up to the point where Mr X had a right of appeal to the Tribunal, which he exercised. Subsequent matters are outside of the Ombudsman’s jurisdiction. I have referred to some later matters for context only.

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How I considered this complaint

10. As part of the investigation, I considered the complaint and the information Mr X provided.
11. I made written enquiries of the Council and considered its response along with relevant law and guidance.
12. Mr 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

13. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
14. 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 the following: 
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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.
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

What happened

15. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
16. Y needed a full-time teaching assistant (TA) and other support staff to enable her to attend mainstream school. Y’s mainstream school received funding from the Council so it could support her.
17. Y’s mainstream primary school approached the Council for an EHC needs assessment on 17 March 2022.
18. The Council confirmed it intended to assess Y’s educational needs. It contacted Y’s school and relevant professionals involved in her care in April 2022, asking for their opinions.
19. Mr X chased the Council for an update in May 2022. The Council said it was waiting on professional reports. It asked Mr X if he had a preference for a mainstream or special school. Mr X said Y cannot continue in mainstream school as, despite the school doing all it can, she is not learning. He said the professionals involved in Y’s care shared this view.
20. The Council said there was a shortage of specialist placements, so it was consulting a variety of schools.
21. Mr X chased the Council for an update in July 2022. The Council said it was waiting on the report from an Educational Psychologist (EP).
22. The Council received the EP’s report at the end of July 2022.
23. Mr X chased the Council again in early August 2022. The Council said the information gathering stage was complete. It needed to create an assessment summary for its EHC Panel (the Panel) to consider and decide whether to issue an EHC plan. The Council said the Panel had a backlog, so this may take a few weeks.
24. Mr X asked the Council for updates several times in September and October 2022.
25. The Council updated Mr X on 1 November 2022. It said the Panel decided to issue an EHC plan for Y, and the Council should complete this within seven working days.
26. The draft EHC plan included ongoing language support, and a differentiated and personalised curriculum with access to multi-sensory resources. However, this was to be provided within a mainstream school setting.
27. Mr X telephoned the Council on 10 November 2022, seeking reasons for its decision to name a mainstream school. Mr X also sent amendments to the draft EHC plan.
28. The Council emailed Mr X on 1 December 2022. It said it was consulting with Mr X’s preferred special school and awaited a response. It said Y needed to remain on roll with her mainstream school until the Council could agree a suitable placement.
29. The Council told Mr X the Panel reconsidered Y’s needs on 12 January 2023 and agreed a mainstream school cannot meet her needs. The Council said it was in contact with Mr X’s preferred special school.
30. In an email to Mr X in February 2023, the Council told him that while the Council agreed a specialist placement is suitable for Y, a special school must agree to meet her needs and offer her a place. It said there was a shortage of suitable placements, but it would chase Mr X’s preferred special school.
31. The Council sent Y’s final EHC plan out on 2 February 2023. Mr X told the Council, despite the Panel deciding Y needed a special school, the plan said mainstream school and named Y’s current school.
32. The Speech and Language Therapy (SALT) service contacted the Council on 3 February 2023. It said Y’s final EHC plan had errors, as the information from their report is missing and the SALT provision outcomes and needs were missing.
33. Mr X telephoned the Council on 13 February 2023. He said he contacted his preferred special school, which the Council said it had consulted, but the school had no knowledge of this.
34. The Council sent a consultation letter to Mr X’s preferred specialist school on 17 February 2023. Unfortunately, the school was unable to offer Y a place.
35. The Council sent consultation letters to several other schools instead. It also consulted with Y’s mainstream school.
36. Y’s mainstream school said it was following the provision in Y’s EHC plan, but she was not making progress. It said she could no longer access the curriculum. The school supported Y’s parents in their preference for Y to attend a special school and said external professionals working with Y agreed.
37. On 6 March 2023, Mr X told the Council he had appealed to the SEND Tribunal about the Council’s failure to name a special school in Y’s EHC plan. The Council agreed to name a special school in Y’s final EHC plan, so the case did not go to a hearing.
38. The Council sent out an amended final EHC plan for Y on 19 June 2023. This time the plan named a special school which had agreed to offer Y a place starting in September 2023.

My investigation

39. In Mr X’s complaint to the Council, he raised the following:
• Lack of contact and updates from the Council, including ignoring emails.
• Delays issuing Y’s ECH plan.
• The final plan names Y’s mainstream school despite the Panel deciding she needs a specialist placement.
• He was told the Council was consulting their chosen special school, but when he contacted the school, they did not know who PY was.
• Y's SALT reports do not give a true reflection of her needs and the Council fraudulently changed professional advice from the SALT service.
40. In its complaint response, the Council acknowledged it mismanaged Y’s case, leading to delays and a significant lack of communication. It said this is not acceptable practice and it apologised. It agreed it missed information in its submission to the Panel but denied changing terminology in the SALT report.
41. The Council told me, regrettably, six officers were involved in the case before the current case officer. Most of those officers were interim staff members.
42. From its records, the Council said communications were not correctly recorded. It has therefore not been possible to identify correspondence between officers and Mr X, with or Y’s school. The Council acknowledged the poor record keeping in this case. It has recently provided training on this during a SEND conference for all caseworkers.
43. The Council said it missed the statutory deadline for issuing an EHC plan and the Panel appeared responsible for delays considering a specialist placement. The Council recognised this fault and apologised for it. It pointed to significant pressures within the service which directly impacted capacity and staffing, and meant the case was not dealt with in a timely manner.
44. The Council said it consulted a special school in February 2023, after issuing the final EHC plan. It does not appear it consulted with the school at the time of the draft plan.
45. The Council said it did not amend terminology in professional reports and did not amend Y’s SALT report. It said it gave relevant information about recommended SALT provision to the Panel. However, it accepts details about recommended SALT provision was not included in Y’s EHC plan and should have been. Detail about other provision was also missing. The Council said a senior officer should have checked the draft plan and identified the omissions, but the interim officer did not send it to a senior officer for authorisation.
46. The Council accepts fault for this and again apologised. It recognised this caused frustration and unnecessary delays. The Council said it has since provided training to all SEN staff on how to write a good EHC plan as a reminder of best practice.

Analysis

47. The assessment summary the Council prepared for the Panel to consider included the relevant information from Y’s mainstream school and professionals about Y’s needs and recommended provision. It referred to the need for a differentiated curriculum but did not go into specifics about type of placement.
48. The Panel did not meet until October 2022, about two months after the twenty-week deadline the Council had in which to issue the final EHC plan. The Council said this was down to a backlog. That was fault.
49. After its first meeting, the Panel agreed to issue a draft plan which provided for continuing language support, and a differentiated and personalised curriculum with access to multi-sensory resources. However, this was to be provided within a mainstream school setting.
50. I found the Panel recognised at its second meeting that it did not specifically address Y’s parents request for a special school when it first met in October 2022.
51. The Council did not consult Mr X’s preferred special school until February 2023. That was fault. The Council told Mr X more than once earlier that it had sent a consultation letter and awaited a response. That was not correct. Due to the lack of records, it is unclear whether this was due to an error or oversight.
52. I saw no evidence the Council altered a changed reports from the SALT service. The assessment summary the Council prepared for the Panel to consider includes the relevant information from the SALT service. However, the Council failed to include some information about SALT provision and outcomes in the initial draft and final EHC plan it issued. The Council has recognised this omission.
53. I found significant fault in the Council’s handling of Y’s EHC needs assessment. The Council has already accepted it was at fault for delays and poor communication. The Council lays some blame with the temporary officers involved in the case, who failed to include important information in Y’s draft EHC plan, and failed to get manager approval before issuing the plan.
54. However, it is the Council with the ultimate duty to oversee the process, ensure it meets deadlines, and includes relevant information. I found there was a lack of proper oversight of the process which the Council should address in future. In addition to the training the Council arranged, which is welcome, it should also consider ways of making its procedures more robust.
55. We cannot make findings in this case about whether the Council was wrong to initially name a mainstream school in Y’s EHC plan. That is because Mr X used his right of appeal, and to do so would be trespassing on the role of the Tribunal. This was confirmed by the Courts in the case of R V Local Commissioner For Administration for the North and East of England ex parte Bradford Metropolitan City Council [1979] QB 287.

Injustice

56. The Council should have issued Y’s final EHC plan by 4 August 2022. It did not issue the initial final plan until 2 February 2023. That is a delay of almost exactly six months.
57. I appreciate the Council did not issue an amended final plan naming a special school until June 2023, four months later. However, when the Council issued the initial final plan in February 2023, this gave Mr X a right of appeal to the Tribunal, which he used. Where an appeal is submitted, the Courts have confirmed the Ombudsman may not investigate matters which occurred after the right of appeal arose.
58. The period of injustice is therefore the six months between August 2022 and February 2023. During this time, Y’s mainstream school provided one to one support throughout the day and did its best to meet her needs. I have not seen evidence Y missed out on educational provision.
59. If the Council had acted without fault and without delays, there is uncertainty about whether the Council could have secured a specialist placement for earlier than September 2023. This uncertainty caused distress for Y and her family. It also delayed the family’s right of appeal.
60. In addition, the Council’s delays and poor communication caused Mr X frustration and he incurred time and trouble chasing the Council for updates.

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Agreed action

61. Within four weeks of my final decision, the Council will:
• Apologise to Mr X and Y for its delays issuing Y’s final EHC plan, recognising the uncertainty, frustration, and distress this caused.
• Make a symbolic payment to Mr X of £1,500 to recognise the impact its mistakes had on the whole family.
• Pay Mr X £500 to recognise the frustration and time and trouble he incurred chasing the Council.
62. The Council should provide us with evidence it has complied with the above actions.

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Final decision

63. I have completed my investigation. I found the Council was at fault for delays, poor communication, and lack of proper oversight of the assessment process.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman