• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: Ms B complained about the service provided by the Council to meet her child’s special educational needs. We upheld complaints the Council delayed in issuing an Education, Health and Care Plan and about its complaint handling. We consider these faults caused distress to Ms B and put her to unnecessary inconvenience. We have completed our investigation, satisfied with the actions already taken by the Council in response.

The complaint

1. I have called the complainant, ‘Ms B’. She complains:

• the Council delayed in issuing an Education, Health and Care (EHC) Plan for her child, ‘C’. It agreed to an Education, Health and Care needs assessment in early October 2022, but did not issue the Plan until mid-May 2023;
• that while drafting C’s plan it sought to amend advice given by an Education Psychologist;
• that it either failed to answer, failed to acknowledge, significantly delayed answering and / or inadequately answered two complaints made in January 2023 and one made in May 2023. 

2. Ms B says as a result:

• C suffered avoidable distress not knowing for several months what school they would attend from September 2023;
• that she also suffered distress and had to put time and effort towards contacting the Council repeatedly about C’s education needs;
• she incurred avoidable expenses in gaining advice from an education consultant and instructing a solicitor to write on her behalf.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. 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)
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted). This will be before publishing the statement on our website.

Back to top

What I have and have not investigated

11. I have investigated the first and third parts of Ms B’s complaint as summarised in paragraph one. I cannot investigate the second part, alleging fault by the Council in how it took account of an Education Psychologist’s report when drafting C’s EHC Plan. I explain my reasons, in the section below headed ‘my findings’.

Back to top

How I considered this complaint

12. Before issuing this decision statement I considered:

• Ms B’s written complaint and any supporting information she provided;
• information provided to us by the Council in response to our written enquiries;
• any relevant law, Government guidance or guidance published by the Ombudsman referred to in the text below.

13. I gave Ms C and the Council chance to comment on a draft version of this decision statement. I took account of any comments they made before issuing this final version.

Back to top

What I found

Relevant law and guidance

14. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and arrangements needed to meet them.
15. 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, based on the Children and Families Act 2014 and the SEN Regulations 2014, 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 within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent information about their right to appeal to the tribunal.

16. If a parent appeals to a SEND tribunal, a council may concede the appeal. If so, then it must complete its assessment within 14 weeks (Regulation 45 of Special Educational Needs and Disability Regulations 2014).

Council complaints policy

17. The Council has a corporate complaints policy. This says that it will acknowledge complaints within three working days of receipt. It will aim to reply under stage one of its procedure, within 10 working days. It may increase this timescale to 40 working days. But if so, the Council will tell the complainant it needs extra time to answer the complaint.
18. If the complainant remains dissatisfied, they can ask the Council to consider the complaint at stage two of the procedure. The Council says it will respond to stage two complaints within 20 working days.

Key facts

19. C has special educational needs (SEN). In June 2022 C’s school asked the Council to carry out an education, health and care needs assessment to see if they needed an EHC Plan. They would enter year 6 of their education in September 2022 and transfer to secondary school twelve months later.
20. In July 2022 the Council refused the school’s request. In August 2022, Ms B appealed the Council’s decision.
21. In October 2022 the Council said it would not oppose Ms B’s appeal. On 10 October it told her that it would complete its assessment of C’s needs in the next 14 weeks. Ms B then withdrew her appeal.
22. In December 2022 Ms B spoke to a special educational needs consultant, concerned the Council had not yet drafted C’s EHC Plan. Acting on their advice she then instructed a solicitor, who sent a ‘pre action protocol’ letter to the Council. The letter said Ms B would issue Court proceedings, known as judicial review, if the Council did not progress its assessment of C’s needs.
23. In January 2023 the Council issued a draft version of C’s EHC Plan. Ms B provided her comments within 14 days. Concurrently she also made two complaints, which I summarise in the next section below.
24. In February 2023 the Council issued further drafts of C’s EHC Plan and agreed it would name a specialist school. However, it did not issue the final version of the Plan until mid-May. Between, in April 2023, Ms B chased the Council to enquire what was happening. It told her C’s case now sat with the Council’s commissioning team, which agreed the funding and placement arrangements for the specialist school.

Ms B’s complaints

25. In January 2023 Ms B complained to the Council about the content of C’s draft EHC Plan (‘complaint #1’). In particular about the wording of the plan in places and that it proposed the health service provide certain therapeutic support C needed, not education services. The Council acknowledged the complaint and said it would respond in 20 working days.
26. Later that month Ms B made a second complaint about the content of C’s draft EHC Plan (‘complaint #2’). She noted how the Council chose to summarise one recommendation made by an Education Psychologist. She considered this changed its meaning. Ms C did not receive an acknowledgment but knows from a subject access request she later made of the Council that it received the complaint.
27. In May 2023 Ms B made a third complaint (‘complaint #3’). This concerned the delay in the Council finalising C’s EHC Plan and asked questions about the Council’s commissioning procedure.
28. In December 2023 Ms B complained to us about the matters summarised in paragraph 1. We asked the Council to reply. It wrote to her in January 2024. In its reply, the Council:

• apologised for not replying to complaint #1 after acknowledging its receipt. It offered Ms B a symbolic payment of £200 in recognition of the resulting time and trouble caused to her;
• accepted there had been a delay of around 16 weeks in it completing C’s EHC Plan. It offered Ms B a symbolic payment of £1120 to reflect the impact this had on C’s education;
• offered explanation for why it had summarised the EP report the way it did in the January 2023 draft EHC Plan. It noted later amending the Plan to include the wording used by the EP, following Ms B’s comments;
• offered general comments on the pressures facing its SEN service. It signposted Ms B towards a transformation plan it is undertaking to address this.

29. Ms B said she wanted to pursue her complaint with us, asking us to consider:

• that the Council had not offered to refund the consultant or solicitor costs she incurred when chasing the outcome to C’s needs assessment;
• it had miscalculated the extent of delay in issuing C’s EHC Plan. Ms B considered this was 29 weeks, taking account of when she first asked the Council to assess C’s needs;
• it had not replied to the substantial points made in complaint #1;
• that she did not accept its explanation given in answer to complaint #2;
• that there were wider problems with the Council’s SEN service, referring to several critical decisions published on our website. Some of these highlighted delays in needs assessments;
• whether the Council’s proposed changes to its SEN services would produce its desired outcomes. She highlighted record keeping around decisions to refuse or agree needs assessments. She said despite public commitments from the Council to keep such records, it had not disclosed any about C’s case when she made her subject access request.

My findings

Complaint about delay

30. There is no dispute the Council delayed in issuing C’s EHC Plan, after it agreed to assess their needs. I understand Ms B considers the Council should have sought to complete the assessment within 20 weeks of when she first requested it – June 2022. However, I do not consider this correct. I agree with the Council that in line with Regulation 45, summarised in paragraph 16, that it had 14 weeks from the date it confirmed to Ms B it would assess C’s needs. That was 10 October 2022.
31. The Council issued C’s final EHC Plan 31 weeks later. So, that was a delay of 17 weeks, close to what the Council calculated. We must regard this as a service failing and therefore a fault by the Council.
32. I have considered the potential causes of the delay. Ms B told me the Council sought EP advice as part of C’s assessment. Ms B understands it was essential an EP report form part of the assessment. But Ms B told me C already had received one EP assessment commissioned by their school and so queries why the Council could not have used that instead.
33. While I understand Ms B’s reasons for thinking this a possibility, I do not consider I could fault the Council for commissioning a further assessment in this case. It provided reasons to Ms B for its decision. While she disagrees with those, they represented the judgment of its education officers and I could not find fault with that. In addition, any delay here was clearly not fatal to the Council missing the deadline to issue to EHC Plan. Instead, this arose from the three months between the Council agreeing C needed a specialist placement and agreeing the detail of that with the preferred school.
34. I consider the consequence of the Council’s delay caused distress to both Ms B and C, as she has explained in her submissions to us, summarised in paragraph 2. I also consider C likely to have experienced some harm to their education. C remained in school throughout the duration of events and I understand the Plan was designed to help them primarily in the secondary phase of their education. But it still had a practical purpose in helping teaching staff during the final months of C’s primary education also.

Complaint about response to complaint #2

35. I do not consider I can investigate this part of the complaint. I understand Ms B’s unhappiness with the wording used in the first draft of C’s EHC Plan. But the law sets out a route of appeal for parents aggrieved with such matters, via the SEND Tribunal.
36. On this occasion Ms B did not have to resort to this because the Council conceded the point after receiving her comments on the draft EHC Plan. But that does not alter the position. Because where someone has a right of appeal to tribunal, we expect them to use that route (see paragraph 6). If they successfully resolve their dispute with the Council before needing to, then it is still not appropriate for us to investigate the complaint, relying also on our general discretion (see paragraph 5).

Complaint about the Council’s complaint handling

37. The Council was at fault here. It has recognised not responding to complaint #1 which it had acknowledged. But it also failed to acknowledge or reply to complaint #2 before it wrote to Ms B in January 2024 and failed to acknowledge or reply to complaint #3.
38. In considering the consequences of this fault I note:

• complaint #1 concerned the content of C’s draft EHC Plan. I do not consider the Council bound to accept it under its complaint procedure. It could instead have offered to consider the content as part of Ms B’s comments on the draft Plan;
• complaint #2 also concerned the content of C’s draft EHC Plan and so the same consideration applies;
• shortly after Ms B made complaint #3 the Council issued C’s final EHC Plan. Because her complaint concerned the delay in securing the specialist school place, the Council might have therefore considered this resolved.

39. Taking account of this, I consider Ms B’s injustice limited to some avoidable frustration in not knowing if she could expect replies from the Council on the matters raised. But I do not consider the injustice extends beyond this, as in each case the primary issues raised were resolved through procedures for finalising EHC Plans.

Ombudsman approach to remedy

40. In paragraphs 34 and 39 I have set out where I consider fault by the Council resulted in an injustice for Ms B and C. I note the Council has already to apologised to Ms B and offered symbolic payment of £1350.
41. I consider this sufficient to remedy the injustice caused. I do not approach the matter of the symbolic payment from the same direction as the Council. In my view, the Council’s fault did not cause C any significant loss of education provision. It was our advice on this subject which guided the Council’s offer. However, both Ms B and C experienced distress which the Council’s offer did not recognise. I consider the one counter-balanced by the other. I also find the payment offered for the inconvenience caused by the Council’s complaint handling appropriate.
42. I do not consider I can recommend more for Ms B’s consultancy or legal costs. Our published guidance on remedies explains we can recommend such payments where someone needs help resolving a complex matter, but not to resolve a complaint. I consider the solicitor letter sent on behalf of Ms B was to resolve a complaint. It suggested using judicial review to require the Council to proceed more quickly with C’s needs assessment. This was not a complex matter. So, while I understand her reasons for not doing so, Ms B could have used the Council complaint procedure to pursue the same point, at no cost.
43. I also do not consider it appropriate to make any service improvement recommendations here. I have noted decisions issued by this office over the past two years. I am satisfied the Council is aware of our concerns about delays we have identified in it completing education, health and care needs assessments and our expectation that it meets the statutory timescales.
44. Further, I have considered information on the Council website about its plan to transform its SEND service. In this, it has committed to improving the delivery of EHC Plans through work to “complete assessments in a more timely manner” and improve the timeliness of EP assessments, which have contributed to delays. I do not consider we should recommend the Council do more while it completes this work and we wait to see what improvement results.
45. This is not to say that I dismiss Ms B’s concerns about the service and the specific issue she has raised around how it records decisions. I am concerned the Council has not produced a record of why it initially refused to assess C’s needs. But this is something I cannot pursue as Ms B both had, and used, her right of appeal to overturn its decision. Paragraph 7 above therefore refers.

Back to top

Final decision

46. I have completed my investigation finding fault by the Council caused injustice to Ms B and C. I find the Council has satisfactorily remedied that injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page