Summary: Ms X complained about the Councils delay in the Education, Health and Care Needs Assessment Process for her son, S. She also complained about poor communication. This has caused her distress, uncertainty, and frustration, and S has not received support. The Council is at fault for delay issuing the Education, Health and Care Plan and poor communication.

The complaint

1. Ms X complained the Council delayed in the Education, Health and Care Needs Assessment Process for her son, S. She also complained about poor communication. This has caused her distress, uncertainty, and frustration, and S has not received support. Ms X wants the Council to finalise the EHC Plan and the Ombudsman to assess the financial remedy.

Back to top

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. 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).

Back to top

What I have and have not investigated

6. I have investigated the actions of the Council, as per Ms X’s complaint. I have not investigated the actions of the City Council.

Back to top

How I considered this complaint

7. As part of the investigation I have considered the complaint and the information provided by Ms X.
8. I have made enquiries of the Council and considered its response along with relevant law and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Relevant legislation

10. 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.
11. 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);  

What happened

12. I have summarised below the key events; this is not intended to be a detailed account.
13. Ms X applied for an EHC assessment for her son, S, to the City Council at the end of 2023. At the beginning of March, the City Council agreed to assess.
14. In April, the City Council transferred the case to the County Council (the Council).
15. S attends mainstream school. In June and July, S’s school contacted the Council to ask about the progress of the assessment. Ms X also contacted the Council about the assessment.
16. In early November, the City Council emailed the Council and said it had transferred the file in April and asked it to confirm receipt.
17. In early December, the Council said it had no record of the case being transferred in April from the City Council. It confirmed it had now received the papers and passed the case to its assessment team.
18. In early January 2024, the Council said it would do an EHC needs assessment. The Council started the assessment and sought advice from professionals. All advice was received within the timescales.
19. Both Ms X and the School contacted the Council to ask about the progress of the assessment throughout the process. Ms X said they received generic responses.
20. The Council issued a draft EHC Plan in the middle of April and a further draft in the middle of May.
21. The Council issued the final EHC Plan in the middle of June 2024.

The complaint

22. Ms X complained to the Council in the middle of September 2023.
23. The Council issued a stage one response towards the end of January 2024 and a stage two response at the end of April.
24. The Council upheld Ms X’s complaint and said it had failed to issue a decision to issue a draft EHC Plan within 16 weeks and failed to issue the final plan within the 20 week deadline.
25. The Council also said there had been multiple emails from Ms X and the School which it had not answered. It said the communication had not been up to standard and apologised.
26. The Council referred to the Ombudsman’s guidance on remedies and offered a financial remedy of £500 for distress and £500 for Ms X’s time and trouble.
27. The Council explained it had made several service improvements including restructuring and increasing staff in the SEND team, commissioning external Educational Psychologists and developing in-house Educational Psychologists. It also has a new system to track reports and is providing SEND advice in schools to help with early intervention. It said the plans are showing positive results.
28. Ms X complained to the Ombudsman in December 2023. She said she was shocked by the lack of correspondence and failure to put the EHC Plan in place. She felt the Council had let S down as he missed educational support, and the process had caused unnecessary distress for the family.

Analysis

29. The Council accepted there have been multiple emails from Ms X and the School which it did not answer. It upheld this element of Ms X’s complaint. The Council is at fault for poor communication.
30. The City Council said it transferred the case to the Council in April 2023. The Council said it has no record of this. Neither does it have a record of correspondence before June 2023. It said it received the assessment documents in November 2023. It is unclear what happened during the transfer process from the City Council and why this was not received by the Council.
31. The School and Ms X emailed the Council in June and July about the transfer of the assessment. It is reasonable to assume the Council was aware of S’s case from this time, even if it had not received the file from the City Council originally. I consider the Council had knowledge of the case from June 2023 and should have acted at this time. Failure to do so is fault.
32. The Council should issue a draft EHC Plan within 16 weeks and issue the final plan within 20 weeks. I have taken the beginning of June as when the Council was aware of this case. That means it should have issued a draft EHC Plan by late September 2023 and a final EHC Plan by late October 2023. The Council issued a Draft EHC Plan in April 2024, and a final EHC Plan in June 2024. Both plans were delayed by roughly eight months. This is delay, this is fault.
33. During the time of the EHC needs assessment, S was on the roll at School and was receiving an education. The Council said S it provided SEN support as part of the Graduated Response. Ms X said S received the same education as the rest of the class, as provided by the teacher. She said there was little individual support for S while he was waiting for the plan to be issued.
34. In response to my enquiries, the Council said if the EHC needs assessment was completed within the statutory 20 weeks, S would have received extra funding for SEN provision. On the balance of probabilities, it is therefore likely S would have received the extra support from the date his EHC Plan should have been issued under the statutory timescales. The Council delayed issuing the final plan by roughly eight months. During this time, S did not have the full support in place. This is his injustice, which the Council has not remedied. It has issued a final EHC Plan which has limited any further injustice.
35. This also caused Ms X distress and time and trouble which the Council has recognised. It has apologised and offered Ms X £1,000 as a financial remedy. I consider this is a satisfactory remedy, in line with the Ombudsman’s guidance.
36. The Council has already made several service improvements to the service. I do not consider any further recommendations are needed.

Back to top

Agreed action

37. Within four weeks of the final decision, the Council agreed to:
• Pay the remedies as set out in its complaint response.
• Pay Ms X, for the benefit of S, £800 to remedy the loss of SEN support he would have received during the eight-month period in which the Council delayed issuing the EHC Plan.
38. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

39. I have completed my investigation. The Council is at fault for delay issuing the EHC Plan and poor communication.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman