Summary: Mrs X complained about the Council’s handling of her request for an Education, Health and Care Plan for her son, and about its handling of her subsequent complaint. Mrs X says the Council’s actions caused avoidable stress to her and her son. We found fault by the Council and the Council has agreed to provide Mrs X with an apology and a financial remedy.

The complaint

1. Mrs X complained the Council delayed issuing an Education, Health and Care Plan for her son. She also complained the Council carried out its own Educational Psychologist’s assessment despite already being in possession of a privately commissioned report. Mrs X also complained the Council incurred delays in its handling of her complaint. She says the Council’s actions caused avoidable stress to her and her son. Mrs X would like the Council to improve its services and consider reimbursing the cost of the privately commissioned Educational Psychologist’s report.

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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 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)
3. 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)
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. 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. 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

7. I discussed the complaint with Mrs X and considered the information she provided.
8. I made enquiries to the Council and considered the information it provided.
9. Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

10. 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 or Council can do this.
11. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code of Practice’) 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.
12. There is a right of appeal to the SEND Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue an EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.
13. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
14. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
15. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal, for example, delays in the process before an appeal right started.

What happened

16. This chronology includes key events in this case and does not cover everything that happened.
17. On 17 January 2023, Mrs X asked the Council to carry out an EHC needs assessment for her son, Child Y. Child Y has a diagnosis of autism and attends a mainstream school.
18. In February 2023, the Council told Mrs X it had agreed to carry out an EHC needs assessment.
19. In June 2023, Mrs X paid for a private Education Psychologist’s (EP) assessment. Mrs X says she paid for the private assessment because she thought it may help expedite the Council’s EHC needs assessment, and because she wanted the EP assessment to be carried out face-to-face with Child Y; Mrs X said she thought the Council may carry out its EP assessment via an online meeting.
20. Mrs X told the Council she had commissioned a private EP assessment in July 2023. A few days later, the Council asked Mrs X if she would be happy for the Council to use the private EP assessment instead of it arranging its own assessment.
21. Mrs X confirmed she was happy for the Council to use the private EP assessment and provided the Council with a copy. Mrs X said she did not feel Child Y required a second EP assessment and asked the Council to consider refunding the cost she had incurred.
22. Shortly after, the Council told Mrs X the Council needed to carry out its own EP assessment. It said both the private assessment and the Council’s assessment may be used to write Child Y’s EHC Plan. The Council said it would not refund the cost of the private EP assessment.
23. Mrs X replied the same day and said she was concerned the EHC Plan process had already taken more than 20 weeks. Mrs X asked the Council when it would carry out its own EP assessment and asked why the Council required a further assessment.

Mrs X’s complaint

24. Mrs X complained to the Council on 27 July 2023 about the delay in providing an EHC Plan. Mrs X also complained the Council was incurring additional delay by requesting its own EP assessment when she had already provided one. Mrs X said the reason she paid for a private assessment was because of the delays already incurred by the Council. She said she considered the private assessment was sufficient and the Council did not need to request an additional one.
25. The Council replied and said its process was for its EP service to conduct its own assessment. It said however, a national shortage of EPs had caused a delay in the process. The Council said it would share the private assessment provided by Mrs X with its EP service.
26. Mrs X told the Council she was concerned about the additional delay and potential duplication of the assessment. Mrs X said she expected the Council to issue a draft EHC Plan urgently and for the Council to use the private EP assessment already provided.
27. Mrs X emailed the Council in August 2023. She said it had been 29 weeks since her request for an EHC needs assessment and the Council had still not provided a draft EHC Plan.
28. The Council replied and apologised that it was significantly over the statutory timescale for issuing an EHC Plan. The Council said it conducted its own assessments, and until this was concluded, it could not fully determine what to include in the EHC Plan.
29. Mrs X told the Council she did not agree with the Council’s reasons for obtaining a further EP assessment and asked the Council to explain how its decisions adhered to the SEND Code of Practice and regulations.
30. The Council replied and told Mrs X that where necessary, it could use the private EP assessment. However, it said the private assessment did not provide exactly what the Council required to draft the EHC Plan. The Council said it would create the draft plan with the advice it had. It said it would incorporate its own EP assessment into the EHC Plan once it was received.
31. The Council issued a draft EHC Plan on 23 August 2023.
32. Mrs X emailed the Council shortly after. She said the Council had not responded to her complaint and had not included the recommendations made by the private EP assessment in the draft EHC Plan. Mrs X said the delay had caused significant distress to the family.
33. The Council replied and acknowledged its complaint response was overdue. The Council said it had applied a brief extension and would provide a complaint response by 4 September 2023.
34. Mrs X chased a response from the Council on 4 September 2023. The Council replied the next day. It apologised for not issuing a complaint response within the original timeframe or the extended deadline and said it anticipated issuing its complaint response the next day.
35. The Council issued its complaint response on 6 September 2023. It referred to a national shortage of EPs and said this had delayed its internal assessment of Child Y’s EHC Plan. The Council said the private EP assessment would be useful because it provided a detailed description of Child Y’s needs. However, the Council said the assessment did not contain the information it required to write the EHC Plan, and for this reason, the Council said it would carry out its own EP assessment.

What happened next

36. On 13 September 2023, Mrs X asked the Council to escalate her complaint. She maintained the draft EHC Plan did not contain relevant information from the private EP assessment and said the Council had still not issued the final EHC Plan. Mrs X said she felt let down by the Council and the process had caused the family a lot of stress.
37. A few days later, Mrs X asked the Council if it had received the additional EP assessment. She said she was very worried about the delay and was concerned this may impact any potential review regarding Child Y’s transition to secondary school.
38. The Council emailed Mrs X on 22 September 2023 in response to her concerns about the transition review. It said the assessment and other reports that formed the EHC Plan would be used as the review paperwork, and that consultation would follow. The Council said when an EHC Plan was in place, the current school and the secondary school would discuss the transition period.
39. The Council provided a further complaint response on 10 October 2023. It referred to the SEND Code of Practice and said psychological advice should be sought from a professional who is normally employed or commissioned by the Local Authority. The Council said that whilst the private EP assessment offered valuable content and recommendations, the Council considered it was not sufficient in isolation. The Council said it was finalising the EHC Plan and apologised for the delay in the process, and for the delay in providing a complaint response. The Council offered a financial remedy of £150 to recognise the time and trouble taken by Mrs X.
40. Mrs X told the Council she was not satisfied with the offer of the financial remedy and that she wished to escalate her complaint to stage two of the complaints process. She said the Council had neglected Child Y’s needs and delayed the family’s right to appeal the EHC Plan.
41. At around this time, the Council received its EP assessment.
42. The Council contacted Mrs X and said it would not escalate her complaint. It said it had proportionately considered the complaint and was unclear what a further investigation would clarify.
43. The Council issued a revised draft EHC Plan on 20 October 2023. Mrs X acknowledged receipt and told the Council she disagreed with the content. She said the draft EHC Plan did not include important evidence from the private EP assessment and provided suggested changes to the plan.
44. The Council issued the final EHC Plan on 9 November 2023.
45. Mrs X remained dissatisfied with the Council’s complaint response and brought the complaint to us.
46. In December 2023, Mrs X submitted an appeal to the SEND Tribunal.

Analysis – Mrs X’s complaint that the Council delayed issuing the EHC Plan

47. Mrs X requested an EHC needs assessment on 17 January 2023. The Council issued the final EHC Plan on 9 November 2023. This is approximately 42 weeks from the date of request to the date of issuance. This equates to approximately 22 weeks more than the statutory timeframe of 20 weeks as set out in the Code of Practice. The evidence therefore shows a significant delay in issuing the final EHC Plan.
48. In its response to our enquiries, the Council said there is a national shortage of EPs that is reflected locally, which meant there was a delay in the EHC needs assessment and the issuance of the EHC Plan. It says the delay with the EP assessment was due to very high volumes of requests for EHC needs assessments both locally and nationally. The Council says it is taking steps to manage this as effectively as possible and minimise delays where possible; it says locum EPs are currently supporting with the process and their reports are then quality assured. The Council says it also has a recruitment process in place for additional EPs to support the rise in EHC needs assessment requests.
49. I acknowledge the Council’s comments regarding a shortage of EPs. I also acknowledge its comments about the steps it is taking to improve its service and I consider this is a positive measure. Nevertheless, the Code of Practice is clear regarding the timescales, and I have found the delay by the Council in issuing the final EHC Plan to be fault.

Mrs X’s complaint that the Council commissioned its own EP assessment

50. Mrs X has appealed to the SEND Tribunal regarding the content of the EHC Plan. As previously stated, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, an appeal to the SEND Tribunal.
51. As a result, we cannot look at anything which happened before the appeal right started which could be considered by the Tribunal; this includes the assessment process such as which reports and documents the Council obtained. For this reason, I am unable to investigate this aspect of Mrs X’s complaint any further.

Mrs X’s complaint that the Council incurred delays in its complaint handling

52. The Council acknowledged in its complaint response to Mrs X that it fell short of responding within the 20 working days specified by its complaints procedure; it offered a financial remedy of £150 as a result. In response to our enquiries, the Council said it oversees complaints via its Customer Rights team and internally within the department. This is to reaffirm timeframes and facilitate responses within the required deadline.
53. It is positive the Council identified the delay itself as part of the complaint investigation. It is also positive the Council has implemented a process whereby it dually oversees the progression of complaints. However, in this case, the Council did not adhere to the timeframe set out in its complaints procedure and I have therefore found this to be fault.
54. Having identified fault, I must consider if this caused a significant injustice to Mrs X and/or Child Y. Mrs X says the Council’s actions caused the family avoidable stress and that she felt mentally exhausted as a result. The delays identified also caused avoidable frustration and uncertainty to Mrs X and the family.
55. When someone has suffered an injustice, we try to put them back in the position they would have been had that error not occurred. Our focus is on restoring services that have been denied and taking practical steps to put things right. Where that is not possible, we will try to think of remedies that acknowledge the impact of the fault identified.
56. When we decide an organisation needs to learn from this fault to prevent likely injustice to others in the future from similar fault, we can recommend actions it needs to take. We call this a service improvement.
57. We recently published a public interest report regarding a similar complaint against the Council, reference 23005778. The report acknowledged the Council’s Special Educational Needs (SEN) service is subject to external scrutiny and intervention and a further improvement plan is to be developed following a recent Ofsted inspection. As a result, we did not make further service improvement recommendations as part of the report.

58. As the above report was published very recently, and as the matters investigated relate to a similar complaint of delay in the EHC Plan process, I have not made additional service improvement recommendations as part of this investigation. However, I acknowledge our previous comments included in the report that our future investigations will provide important evidence of whether the further changes the Council makes improve special educational needs and/or disabilities services for local people.

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Agreed action

59. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology for the fault identified to Mrs X and Child Y. 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;
2. Make a symbolic payment of £550 to Mrs X in recognition of the frustration and uncertainty caused to the family by the delay in issuing the Education, Health and Care Plan. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final Education, Health and Care Plan in June 2023 until the date it issued the final plan in November 2023, a period of roughly 22 weeks, or five and a half months. The amount is based on our approach to providing a consistent and proportionate way to remedy injustice caused as a result of delays in the Education, Health and Care needs assessment process, and acknowledges the previously referred to shortage of Educational Psychologists, and
3. Make a further symbolic payment of £150 to recognise the time and trouble taken by Mrs X as a result of the delay in the complaint handling.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have found fault by the Council and the Council has agreed to take the above action to remedy the injustice to Mrs X and her family. I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman