Summary: Ms X complained the Council delayed issuing an Education, Health and Care (EHC) Plan for her grandson (C), which means he does not have a place at a Special School. Ms X also said the Councils complaint response has been poor. The Council is at fault for delay in assessing C’s needs and issuing an EHC Plan. This has caused the family uncertainty.

The complaint

1. Ms X complained the Council has delayed issuing the Education, Health and Care (EHC) Plan for her grandson (C), which means he does not have a place at a Special School. Ms X also complained the Councils complaint responses have been late and she feels she has been fobbed off. Ms X says C has missed some education and the delay in the process has caused upset and stress to the whole family. Ms X wants the Council to apologise and provide a remedy.

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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. 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)
4. 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

5. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Children and Families Act 2014, the Special Education Needs Regulations 2014, the Education Act 1996 and the Special Educational Needs and Disability Code of Practice, January 2015.
6. Ms 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

7. 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. 
8. 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 (unless certain specific circumstances apply);  
• 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.
9. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 
• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 
10. Those consulted have a maximum of six weeks to provide the advice. 
11. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a 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.

The Council’s policies and procedures

12. The Council has a two stage formal complaints procedure for matters which cannot be resolved quickly and informally.
13. Once allocated to an investigating officer, the officer has 20 working days to investigate and respond to the complainant. This is the first stage.
14. If the complainant does not consider the complaint was adequately investigated, they may ask for a stage two review. Once the Council has accepted the request and allocated the complaint to a senior manager, the manager has 25 working days to respond.

What happened

15. I have summarised below the key events; this is not intended to be a detailed account.
16. C lives at home with his family. He started attending primary school in September 2021. The school issued C with a learning plan in November and asked the Council to do an EHC needs assessment in December 2022.
17. The Council decided to assess C in January 2023. The same day, it requested advice from professionals. The date for responses was mid-February.
18. The Council received the Educational Psychologist report in March. It received advice from the school and Occupational Therapist in May.
19. C’s school responded to a consultation in June and said it could not meet C’s needs. It said it had put support in place for C including therapeutic support, high level of 1:1 and small group work. It explained these were short term measures.
20. The Council drafted the first version of the EHC Plan in early June and updated this in late June. The Council issued and shared the Plan in late June.
21. The family were able to respond to the draft within 15 days. The Council did not receive any responses within the timescales.
22. The Council issued the final EHC Plan around the middle of October. The Plan did not name a school in section I. Ms X did not appeal to the Tribunal.
23. C is still on the roll at his primary school. The Council provided high needs funding to support C’s needs at the primary school. The records show C’s attendance was just over 90% from September 2023 to March 2024.
24. The Council continued consulting with special schools to find a place for C. It has secured C a place at a special school where he is due to start in September 2024. The family are happy with this decision.
25. In response to my enquiries, the Council explained it has made service improvements. It has developed monitoring spreadsheets to ensure it does not miss statutory timescales in the future and has reminded caseworkers of the importance of communication and keeping families updated.

Ms X’s complaint

26. Ms X complained to the Council in late July. She said C’s EHC Plan was 13 weeks overdue and the Council had not explained or apologised for the delay. Ms X said the reports were ready for the caseworker to consider but they failed to do so. She did not accept the reason for the delay was a lack of Educational Psychologists. She said C’s needs cannot be met in mainstream school, he needs a place in a special school but this is not available because of the delay.
27. The Council issued a stage one response in early August. It partially upheld Ms X’s complaint and said the late advice from the school and the Educational Psychologist contributed to the delays. The decision was further delayed due to the Decision Making Group deferring the case to a later meeting. It accepted the EHC Plan was beyond the legal timescale for completion, and it had not communicated with Ms X effectively about the delays. It said it reminded case workers of the importance of updating and communicating with families.
28. Ms X was not happy with the Council’s response and sought a stage two review. She said she disagreed with the stage one response which said the delay in the EHC Plan was due to delay in receiving the Educational Psychologist and school report. The Council responded in early November. It apologised for the delay in responding to her stage two request. The Council explained there were ‘multiple factors’ which caused the delay issuing the EHC Plan, including delays in internal processes and the delayed reports. It did not uphold this part of Ms X’s complaint.
29. Ms X also said C lost a place at a special school because of the Councils failings. In its response, the Council said there was a place available at a special school to start in September 2023 but Ms X declined. It said it had consulted with several other schools which gave negative responses. Ms X’s preferred school had been full since February and could not offer C a space.
30. Ms X complained to the Ombudsman in the middle of November. She said the Council were over the timescales and had not issued a final EHC Plan or provided a place at a special school. Ms X said she felt ‘fobbed off’ by the Councils complaint response which was also delayed. She said the delay issuing the final EHC Plan meant C was missing education which was affecting his behaviour and causing stress to the whole family.
31. In late April 2024, Ms X said the Council amended C’s EHC Plan and named a different school without consulting with the family or arranging a visit. This is a new matter, outside the scope of this investigation. Ms X may raise this with the Council and consider using the right of appeal to the tribunal.

Analysis

Timeliness of the EHC needs assessment and planning

32. Following receipt of the request to assess C, the Council made the decision within the timescales. The Council is not at fault.
33. The Council should have issued the draft EHC Plan in late March 2023 according to the statutory timescales. The Council issued the draft EHC Plan in the middle of June. This was 12 weeks late, this is fault.
34. The Council should have issued final EHC Plan in late April 2023. The Council issued it in the middle of October. This was roughly 24 weeks late, this is fault.
35. In its complaint response, the Council explained the delay in issuing the EHC Plan was due to several factors. This included the delay in the report from the Educational Psychologist and the school as well as administrative internal procedures at the Council. It partially upheld Ms X’s complaint as it accepted there was delay, but the reasons for the delay were not solely as Ms X suggested. While I can understand Ms X’s frustration about the delay and wanting to understand the reasons for this, I am satisfied the Council acknowledged there was delay and provided several reasons for this. I do not consider it proportionate to investigate this further. The Council is at fault for delay in the process.
36. A place was available for C at a special school for C to start in September 2023 but Ms X refused this placement. Ms X’s preferred school was already full in February, before the draft and final plan would have been issued. Had there been no delay in the process, Ms X’s preferred school would still not have been available to C. The outcome would have been the same.
37. While the Council was consulting with special schools for C, it provided additional funding for his mainstream primary school to provide additional support which meant C could still access education and he attended most days. The Council provided additional support to ensure C received education. It is not at fault.
38. The Council has secured a place for C at a school the family are happy with. Any further injustice has been limited.

Timeliness of the complaint response

39. The Council issued a stage one response within 20 working days. It is not at fault.
40. The Council delayed in responding to Ms X’s request for a stage two investigation. It did not meet the timescales in its complaint’s procedure set out above. This is fault. The Council has already apologised, it was right to do so.

Summary

41. The Council is at fault for delay in issuing a draft and final EHC Plan. It is also at fault for delay in responding to Ms X’s complaint.

Injustice

42. I have considered the impact the Council’s faults had on C, Ms X and their family.
43. The Council’s delay in drafting and finalising an EHC Plan for C has caused C, Ms X and the family uncertainty, made worse by the Councils delay in the dealing with the complaint. This is their injustice.

Remedies

44. The Council has made several service improvements. It is right to have done so. I do not consider I need to make any further recommendations.
45. The Council has already apologised for the delay in responding to Ms X’s complaint. It was right to do so.

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Agreed actions

46. Within four weeks of my final decision, the Council should:
• Apologise to Ms X for the delay in issuing a draft and final EHC Plan.
• Pay Ms X £300 for the uncertainty caused by the delay in issuing a draft and final EHC Plan.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation. The Council is at fault for delay in issuing an EHC Plan.

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Investigator's decision on behalf of the Ombudsman