Summary: Mrs X complained the Council delayed reassessing her child, Child Y’s Education, Health and Care Plan needs within the statutory timescales and the Council did not provide the reassessment decision. Mrs X also complained the Council communicated poorly with her. The Council was at fault and will apologise for the frustration caused to Mrs X by the delay in informing her if it would reassess Child Y’s needs.

The complaint

1. Mrs X complained the Council delayed reassessing her child, Child Y’s Education, Health and Care Plan needs, within the statutory timescales and the Council did not provide the reassessment decision. She also complained the Council communicated poorly with her. Mrs X said this caused delay in Child Y receiving the correct support in school. She said it also caused her distress and uncertainty, meant she had to go to undue time and trouble contacting the Council and impacted on her health.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
4. 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
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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)
7. The period we cannot investigate starts from the date the council makes an appealable decision. If the parent goes on to appeal, the period we cannot investigate ends when the tribunal comes to its decision. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407 and R (on application of Milburn) v Local Govt and Social Care Ombudsman [2023] EWCA Civ 207)
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)
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 considered:
• the information Mrs X provided and spoke to her about the complaint;
• the information the Council provided and its response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care (EHC) Plan

12. A child or young person with special educational needs 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.
13. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.

Reassessments of EHC Plans

14. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent.
15. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request.
16. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

The Council’s complaints procedure

17. The Council’s complaints procedure says the following:
1. at stage 1, it will aim to provide a response within 20 working days. If not it will explain the reasons it will take longer and when the complainant should expect a response;
2. if someone is not satisfied with the stage 1 response, they can escalate their complaint to stage 2 within 25 days. The Council may decide it should not progress the complaint to stage 2 and direct the complainant to the Ombudsman; and
3. if the Council considers the complaint at stage 2, it aims to respond within 25 working days and will explain why if it will take longer. It will issue a final response within a maximum of 65 working days.

What happened

18. Child Y lives with their family and attended a mainstream school, School 1. Child Y has ADHD, Autism and suffers from anxiety.
19. Child Y had a final amended EHC Plan, this Plan named School 1 in Section I. Child Y’s annual review was held in mid-October 2022. In mid-November 2022 the Council sent Mrs X a letter and said it would amend Child Y’s EHC Plan.
20. In late November 2022 Mrs X asked the Council to carry out a reassessment of Child Y’s needs. She said the provision set out in Section F of Child Y’s EHC Plan was no longer suitable and School 1 no longer met Child Y’s needs and she wanted a special school placement named in Section I of their EHC Plan.
21. In mid-January 2023 the Council issued Child Y’s final amended EHC Plan and told Mrs X of her right of appeal to the SEND tribunal. This plan continued to name School 1 in Section I.
22. Two weeks after the Council issued the final Plan it wrote to Mrs X and said it would complete a reassessment of Child Y’s needs.
23. In late March 2023 Mrs X appealed to the SEND tribunal on Section’s B, F and I of Child Y’s final amended EHC Plan issued in mid-January 2023.
24. The same day Mrs X complained to the Council about matter set out in paragraph one of this decision statement.
25. In late April 2023 the Council responded to Mrs X’s stage 1 complaint and apologised for the delay in responding to Mrs X. The Council upheld Mrs X’s complaint.
26. In early May 2023 Mrs X escalated her complaint to stage 2. Three days later the Council agreed to escalate her complaint to stage 2 and said it would take between 25 and 65 working days for a response.
27. In late August 2023 the Council responded to Mrs X’s stage 2 complaint.
28. Mrs X remained unhappy with the Council’s response and complained to us.

My findings

Reassessment delay

29. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
30. Mrs X asked for a reassessment of Child Y’s needs in late November 2022. The Council should have sent Mrs X a decision letter on whether it would reassess Child Y’s needs within 15 calendar days and by mid-December 2022. The Council did not send Mrs X its decision letter until late January 2023. This was over the Christmas period when the Council officers would have been on annual leave, however it still caused a delay of 6 weeks and was fault. It caused Mrs X frustration and the Council will apologise.
31. Mrs X complained the Council delayed in completing the reassessment of Child Y’s needs it said it would complete in January 2023. Mrs X has also since appealed Sections B, F and I of Child Y’s final amended EHC Plan issued in January 2023. As explained in paragraph 6 above we 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. Mrs X can raise the issues about the reassessment of Child Y’s needs to the SEND tribunal. I therefore cannot investigate Mrs X’s complaint about the reassessment of Child Y’s needs any further.

Council complaints handling

32. Mrs X made a stage 1 complaint to the Council in late March 2023 and the Council responded in late April 2023. The Council has already apologised for the delayed response which is an appropriate remedy.
33. Mrs X escalated her complaint to stage 2 in early May 2023. The Council should have responded by mid-August 2023. It did not respond until late August 2023, a delay of seven working days. This was only a slight delay and was not fault.

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Agreed action

34. Within one month of the final decision the Council will apologise to Mrs X to acknowledge the frustration caused by the delay in making a decision on Child Y’s needs reassessment.

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Final decision

35. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman