Summary: Mr C complained about the Council’s delays during the Education, Health and Care needs assessment process for his son. He also complained the Council’s communication was poor and its handling of the consultation process was flawed. We find the Council was at fault as it delayed issuing Mr C’s son’s Education, Health and Care Plan. It was also at fault for its communication with Mr C and its handling of the consultation process. Finally, it significantly delayed responding to Mr C’s complaint. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mr C complained about the Council’s delays during the Education, Health and Care (EHC) needs assessment process for his son, D. He also complained the Council’s communication was poor and its handling of the consultation process was flawed. Finally, he says the Council delayed dealing with his complaint and it did not address his concerns appropriately.
2. Mr C says D was denied a fair chance of going to a specialist school because of the Council’s delays. He adds the matter has caused distress and mental anguish to him and his family.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
6. 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)

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How I considered this complaint

7. I considered information from Mr C. I made written enquiries of the Council and considered information it sent in response.
8. Mr C 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

Education, Health and Care (EHC) needs assessments

9. 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.
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 needs 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. 
• 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 (unless certain specific circumstances apply)
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

11. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP) and advice and information from any person requested by the parent or young person, where the council considers it reasonable. Those consulted have a maximum of six weeks to provide the advice. 

The Council’s complaints policy

12. At stage one (local resolution) the service will acknowledge the complaint within three working days and provide a full reply within 20 working days.
13. If the complainant remains dissatisfied, they may escalate to stage two. The Council will provide a formal response within 20 working days. For more complex cases it will be a maximum of 65 working days.

What happened

14. This chronology includes an overview of key events in this case and does not detail everything that happened.
15. D has special educational needs. The nursery D attended asked the Council to complete an EHC needs assessment for him at the end of October 2022. D was due to start school in September 2023.
16. The Council agreed to assess D in December 2022. It received health and social care advice the same month. It received EP advice in February 2023.
17. The Council reviewed the advice and agreed to issue D with an EHC Plan in February.
18. Mr C emailed the Council in April and said D had been assigned a place at a mainstream school (School A). He asked the Council to confirm when it would issue the draft EHC Plan. He also asked if the EHC Plan would supersede School A as he wanted D to attend a specialist setting. Mr C chased the Council for a response in early May.
19. Mr C did not receive a response to his emails. He sent a further email to the Council in mid-May. He asked it to confirm when it would issue D’s draft EHC Plan.
20. Mr C emailed the Council again in late June. He said he tried contacting it several times without success. He said the statutory 20-week deadline to finalise D’s EHC Plan was at end of March. He said D did not have the named specialist setting that he needed. The Council responded on the same day and said it hoped to issue D’s draft EHC Plan within the next few days.
21. Mr C sent a formal complaint to the Council on the same day. He said it failed to communicate with him and it failed to issue D’s final EHC Plan within statutory timescales. He said this meant D would have to start in a mainstream setting where he would not have any access to 1:1 support.
22. The Council issued D’s draft EHC Plan in early July. Mr C responded on the same day with his comments.
23. The Council sent Mr C an updated draft EHC Plan. Mr C responded and said he was happy with the amendments. He asked it to confirm if it was going to consult with his preferred settings (two specialist schools) and School A.
24. The Council consulted with Mr C’s preferences and School A in mid-July. The specialist schools responded shortly after and said they were both full and therefore they could not accept D. School A responded just over a week later and said it was not a suitable setting to meet D’s needs.
25. The Council issued its stage one response to Mr C’s complaint in late August. It said it had sent consultations out to various providers and it was waiting for responses. It apologised for the delay in finalising D’s EHC Plan.
26. Dissatisfied with the Council’s response, Mr C referred his complaint to stage two of the Council’s complaints procedure on the same day.
27. Mr C emailed the Council in early September and said it had failed to provide any updates on the consultation process. He asked it to provide a clear plan on the next steps. The Council responded and said his preferred settings were full. It said School A had not replied. It said it would take D’s case to its specialist resource provision panel.
28. Mr C replied to the Council’s email. He said School A had responded to the consultation before the summer holidays. He said D was attending School A, but it was not the right setting for him. He asked the Council to consult with four other settings. The Council agreed to this.
29. The panel reviewed D’s case and decided a specialist setting was suitable for him.
30. Mr C chased the Council for a response to his complaint in late September.
31. The placement team decided not to consult with the four settings because of instructions from managers. The Council issued D’s final EHC Plan in early October. It named School A as the setting to deliver the provision in the Plan. Mr C disagreed School A was suitable, and so he appealed to the SEND Tribunal.
32. The Council emailed Mr C in mid-October and apologised for the delay responding to his complaint.
33. The Council issued its stage two response to Mr C’s complaint in late February 2024. It said it was sorry about the delays in finalising D’s EHC Plan. It said D was attending School A, and it could not amend the setting until the SEND Tribunal hearing had taken place.

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Analysis

34. The Council should have issued D’s final EHC Plan in late March 2023. The Council missed this deadline by more than six months. This is a significant delay and is fault. The Council received EP advice four weeks late. However, its decision to issue D with an EHC Plan was only two working days late, which is a minor delay. The main delays in this case are from February 2023. The Council took five months to issue D's draft EHC Plan and then a further two and a half months after that to finalise the Plan.
35. The Council’s communication with Mr C during the EHC needs assessment process was poor. It failed to provide any updates from February 2023 until the end of June 2023. It also failed to answer Mr C’s emails during this time, despite several chasers.
36. The Council was also at fault for how it handled the consultations and its communication with Mr C about it. By the end of July, the Council received responses from all the settings it consulted with. However, it failed to update Mr C. Mr C only became aware after asking the Council for an update in September. The Council should have been in regular communication with Mr C, especially as D was due to transfer to primary school in September.
37. The Council told Mr C in September it would consult with four other settings. It failed to do this. The Code makes it clear councils must consult with a parent’s preferred educational setting. The Council did not tell Mr C it had changed its mind and why it had done so. The Council should be actively communicating with parents and explaining its decisions.
38. The Council’s faults in paragraphs 34 to 37 of this statement have caused Mr C a significant injustice. The delays in finalising D’s EHC Plan caused Mr C significant uncertainty and frustration over D’s education. His appeal rights to the SEND Tribunal have also been frustrated. The Council’s faults in its communication and the flaws in the consultation process caused Mr C further frustration and distress and he was inconvenienced by repeatedly chasing for updates.
39. The Council’s faults have also caused D a significant injustice. If the Council had acted without fault, he would have had an EHC Plan in late-March 2023. I am satisfied on balance the Plan the Council issued in October 2023 is not materially different from what it would have been if it was issued in late-March 2023. Therefore, D has missed out on more than a term of special educational provision.
40. I understand Mr C wanted D to attend a specialist setting, and he is unhappy with the Council’s decision to name School A. He says the Council’s delays in finalising D’s EHC Plan means he lost out on a specialist setting. The SEND Tribunal deals with appeals about educational settings. We cannot direct changes to the name of the educational setting in an EHC Plan. Mr C has used his appeal right, which is the correct course of action to resolve this issue. However, I accept the Council’s delays in consulting with schools leaves Mr C with uncertainty about whether D would have received an offer from a specialist setting, and whether the Council would have named that setting in D’s EHC Plan.
41. The Council stage one response to Mr C’s complaint was one month late. It also contained the wrong information. It said it was waiting on consultation responses. However, it had already received these at end of July. The Council’s stage two response took six months rather than 20 working days. This is a significant delay. The Council only provided Mr C with one update during this time. The stage two response also did not answer most of Mr C’s complaint and offer any remedy for the injustice caused by the faults identified. The faults in the Council’s complaints handling have added to Mr C’s frustration and he was put to time and trouble chasing a response.
42. We issued a public report in June 2023 and highlighted the Council’s significant delays in dealing with complaints. The Council agreed to develop an action plan to resolve the backlogs. It has now developed a complaints backlog team and recruitment for the team is ongoing. We have also recently asked the Council to consider the changes it can make to its communications process and to review its staff guidance and processes to ensure EHC needs assessments are completed on time. Therefore, I have not recommended any further service improvements.

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Agreed action

43. By 8 July 2024 the Council has agreed to:

• Apologise to Mr C for the injustice caused by faults identified in this statement.
• Pay Mr C £250 to recognise his time and trouble and the frustration caused by how it handled his complaint.
• Pay Mr C £500 to recognise his frustrated appeal rights to the SEND Tribunal and his uncertainty, frustration and inconvenience caused by the delays in finalising D’s EHC Plan, the failures in the consultation process and the poor communication.
• Pay Mr C £1,800 for D’s lost special educational provision from March to October 2023. We suggest Mr C uses this for D’s educational benefit.

44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. There was fault by the Council, which caused Mr C and D an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman