Summary: Mrs X complains about how the Council handled her daughter, C’s, Education, Health and Care Plan assessment. She says it delayed the statutory process and took too long to consult schools to check if they could meet C’s needs. This meant that C was left with no educational and therapeutic provision for longer than necessary. Mrs X would like the Council to apologise for the delays and pay them for the distress its actions have caused. The Council was at fault for the delays in the assessment process. The Council agreed to our recommendations on how it should address the injustice its actions caused to Mrs X and C.

The complaint

1. Mrs X complains that since May 2022 when she requested C’s Education, Health and Care (EHC) Plan assessment the Council failed to:
• complete the assessment in the statutory 20 weeks and issue C’s final EHC Plan;
• allow her the full 15 days to comment on C’s draft EHC Plan;
• consult with enough schools to secure a suitable school place for C in time for September 2023;
• communicate with her effectively about the progress of C’s assessment and school consultation process;
• accept the complaints she made about the service she was receiving; and
• consider and reply to her complaint about the delays in the assessment process in line with its policy.
2. Mrs X said the Council’s failures caused avoidable stress to her, but also C. She says that the delays negatively affected C’s mental health.
3. Mrs X would like the Council to apologise and improve its services, so this does not happen to another family and pay her for the stress she and C went through. She would also like the Council to continue consulting with other schools to find a school place for C, help pay for therapies and a tutor for her.

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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. 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)
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
7. 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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What I have and have not investigated

8. The issue of what school is named in the EHC Plan is being dealt with through Mrs X's appeal to the SEND Tribunal. Therefore we have not investigated her complaint that the Council did not consult with appropriate schools for C’s needs, because the law says that we cannot do it.
9. She also asked that the Council continued the consultations in order to secure a suitable school place for C, but this also has been addressed and now resolved by the SEND Tribunal.

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How I considered this complaint

10. As part of the investigation, I have:
• considered the complaint and Mrs X's comments; and
• made enquiries of the Council and considered the comments and documents the Council provided.
11. Mrs X and the Council have 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

12. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to local authorities about how they provide support for children and young people with Special Educational Needs (SEN).
13. The majority of children with SEN have those needs met by schools and early years settings. Those bodies have a responsibility to identify children with SEN, sometimes with the help of outside specialists.
14. If a school or parent has concerns that, despite a school’s SEN provision, a child is not making the expected progress, they can ask a local authority to consider whether it needs to carry out an assessment of EHC needs.
15. An EHC Plan is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
16. The Council must respond to all requests for an EHC Plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHC Plan must take no more than 20 weeks.
17. Where there are exceptional circumstances, it may not be possible for the Council to meet the timescales. The Council should tell the child’s parent or the young person of the reasons for any delays.
18. Councils must seek advice from the child’s parent, their school, healthcare professionals involved, an educational psychologist, and from anyone else the parent has reasonably requested.
19. The Regulations set out the minimum information and advice the Council should seek in an EHC assessment. A parent or young person can ask the Council to seek advice from anyone within health, education or social care and, provided it is a reasonable request, the Council must do so. It is more likely to be reasonable if that professional is already involved with the child.
20. The Regulations say the advice should be provided within six weeks, which is also the timescale for a local authority deciding whether it needs to draw up a plan.
21. The Code says a council:
• must ensure the child’s parents are fully included from the start and consulted throughout the production of the plan; and
• should carry out timely, well-informed assessments.
22. The Council can only issue an EHC Plan after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a plan or not.
23. If the Council decides to issue a plan, it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request, but it should be able to explain why the EHC Plan meets the needs of the child.
24. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHC Plan as these are appealable to the SEND Tribunal.
25. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.
26. Once the Council issues the final EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.

What happened

27. In mid-May 2022 Mrs X asked the Council to assess her daughter C for an EHC Plan. The Council agreed to issue an EHC Plan for her in late September 2022.
28. Around the same time the Council issued C’s first draft EHC Plan. The evidence Mrs X submitted shows that the Council asked her to reply in seven days, rather than the 15 the legislation allowed.
29. In early October Mrs X told the Council that she needed more time and asked it to explain to her how the consultation process worked. The Council responded to her 15 days later to ask which schools Mrs X wanted it to consult with. On the same day Mrs X gave the Council her three preferences.
30. In the first two weeks of November 2022 Mrs X chased the Council and one of the schools, which said it had submitted its response to the Council’s consultation two weeks earlier – something Mrs X said she was not aware of.
31. In mid-November the Council told Mrs X that it was going to discuss C’s case with a manager next week and update Mrs X after the meeting, but this did not happen.
32. Mrs X chased the Council for an update throughout late November and December. When she got a reply in mid-December 2022 it said that C’s EHC Plan was submitted for a decision, without any further explanation.
33. Mrs X continued to chase the Council into January 2023. In early February 2023 she asked the Council to begin a formal complaint process as she was unhappy with the delays and lack of communication from C’s caseworker.
34. The following day the Council told Mrs X that it would issue her final EHC Plan and name her current primary school in it. It also said it would continue to look for an appropriate school place for C, but in the meantime finalising her EHC Plan would allow additional funding for the school.
35. In early February the Council issued C’s final EHC Plan. It named her mainstream primary school even after the school told the Council it could not meet her needs. Mrs X was unhappy with the contents of the final EHC Plan and the school the Council named, and she appealed it to the SEND Tribunal.
36. In late April 2023 Mrs X complained to the Council again and began the corporate complaints procedure. She said the Council was late in completing C’s EHC Plan assessment, her caseworker did not log her complaints, and the caseworker only consulted a handful of schools and eventually named a mainstream school in C’s final EHC Plan that could not meet her needs.
37. The Council acknowledged Mrs X’s complaint the following day and it told her that it would reply by late May 2023.
38. In late May 2023 Mrs X submitted an appeal to the SEND Tribunal.
39. In early June the Council wrote to Mrs X and said that it was aware it had not yet replied to her complaint. It apologised and said that it was chasing the service for a response.
40. At the end of July 2023, the Council wrote to Mrs X again and apologised for the further delay. It told her the service was under a lot of pressure and this was why her complaint response was delayed.
41. In mid-August 2023 Mrs X asked the Council to respond to her complaint, as it has taken almost four months to consider her concerns. The Council apologised for the delay and said it had sent an urgent reminder to the service.
42. The Council responded to Mrs X’s complaint in mid-August 2023. It:
• apologised for the delay in responding to her complaint;
• apologised for not keeping Mrs X suitably informed of the assessment progress;
• said the Council could not consult with other schools because of the current SEND Tribunal appeal; and
• said it determined the school named in C’s EHC Plan could meet her needs and she should remain there.
43. Mrs X was unhappy with the Council’s response and in November 2023 she complained to us.

Analysis

ECH Plan assessment

44. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code, and we are likely to find fault where there are significant breaches of timescales.
45. Mrs X asked for an EHC assessment at the start of May 2022. The Council failed to complete the process and issue a final EHC plan within 20 weeks from the date of Mrs X’s request. It should have issued C’s final plan around the end of September 2022. The final EHC plan was not available until February 2023. This was a delay of five months which was fault. Additionally, the Council put pressure on Mrs X to submit her comments sooner than the minimum 15 days the legislation allows her. This is fault. Mrs X ended up needing more time than the Council originally suggested, and we consider this remedies any injustice arising from requesting Mrs X to submit her comments early. The process took almost twice as long as it should have. It had an adverse impact on Mrs X because it delayed her right of appeal to the SEND Tribunal and caused avoidable distress and time and trouble chasing officers up. It also meant there was a loss of SEN provision for C because she could not have received the tailored provision on an EHC plan yet to be finalised.
46. The records suggest Mrs X was chasing officers in the SEN team many times for updates, that she did not always get substantive replies and any replies did not give meaningful updates. The failure to give a rough timeframe was poor communication and was fault.

Complaints handling

47. Mrs X first requested information on how to make a formal complaint about the delays in finalising C’s EHC Plan in February 2023. The Council did not respond to her and did not register a complaint at the time. This is not in line with the Council’s complaints procedure and is fault.
48. The Council accepted that it was late with responding to Mrs X’s complaint. This further contributed to the avoidable frustration that Mrs X experienced during C’s EHC Plan assessment and corporate complaint.

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Agreed action

49. Within one month of the date of the final decision statement, the Council will:
• apologise to Mrs X and C for its failure to complete C’s EHC Plan assessment within the statutory 20 weeks and the distress and frustration this has caused them 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;
• pay Mrs X £400 to remedy the distress and frustration the delay has caused her; and
• pay Mrs X £200 to recognise the delay in answering her corporate complaint and the unnecessary time and trouble she experienced as a result of the delay.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. The Council was at fault for the delay in C’s EHC Plan assessment process and late complaint response to Mrs X’s complaint. The Council agreed to our recommendations and our investigation is now complete.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman