Summary: Miss X complained about the delays she encountered during her daughter’s Education, Health and Care needs assessment. We have found fault with the Council for the delays which then delayed Miss X’s right of appeal.

The complaint

1. Miss X complained about how the Council handled her request for an Education Health and Care (EHC) needs assessment for her daughter, Y. She said the Council delayed notifying her of its decision not to issue an EHC Plan, delayed responding to her complaint and failed to communicate adequately.

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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 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.
4. 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)
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)

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What I have and have not investigated

6. I have investigated the process the Council followed between the point it agreed to carry out an EHC needs assessment for Y (28 March 2023) until Miss X brought her complaint to us (15 January 2024). I have investigated the alleged delays and poor communication encountered by Miss X.
7. I have not investigated any matters being considered by the SEND Tribunal. This includes the information used by the Council and the reasons for its decision not to issue a EHC Plan.

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How I considered this complaint

8. I considered Miss X’s complaint and have spoken to her about it.
9. I have also considered the Council’s response to Miss X’s complaint.
10. Miss 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

Legislation and guidance

SEND and EHC Plans

11. 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.
12. 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.
13. The Regulations say:
• 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.
• if a Tribunal issues an order for the council to make an assessment, then it must notify the child’s parent within 2 weeks that it shall make an assessment.
• where, following an assessment, the council decides that it is not necessary for special educational provision to be made for the child, it must notify the parent within 10 weeks of the Tribunal order, or
• where, following an assessment, the council decides it is necessary for special educational provision to be made for a child, it must finalise the EHC Plan within 14 weeks of the Tribunal order.

Complaints procedure

14. The Council corporate complaints procedure sets out how complaints will be handled. It says that complainants will be listened to, and appropriate action should be taken to try and resolve any issues speedily and effectively.
15. It says that where a complaint is not resolved at the time or within 3 working days of the receipt, an acknowledgement will be sent to the complainant including the expected date for a response.
16. It says a full response should be made at the earliest possible time, and in general this should not exceed 28 calendar days.

What happened

Background

17. Miss X’s daughter, Y has SEND. In December 2022, Miss X requested the Council carry out a EHC needs assessment for Y. Within 6 weeks, the Council notified Miss X that it would not assess Y. Miss X appealed to the SEND Tribunal. The Council conceded on 28 March 2023 and the SEND Tribunal issued an Order for the Council to take action. In accordance with the Regulations, from the date of the Order, the Council should have:
• By 11 April: notified Miss X that the Council will make the assessment; and
• By 6 June: notified Miss X if the Council decides not to issue an EHC Plan, or
• By 4 July: issued a Final EHC Plan.

EHC needs assessment

18. The Council notified Miss X on 14 April of the date of assessment. The Council accepts this was 3 days later than the statutory deadline.
19. In May, Miss X submitted the relevant forms and information to the Council and the Council received the Educational Psychologist report.
20. Miss X chased the Council for a response in June and July after the 10 week and 14 week deadlines passed. Miss X said she received a generic email from the Council in July stating that it was not responding to EHC Plan progress update requests.

Miss X’s complaint

21. Miss X complained to the Council in October 2023 about the lack of progress and missed statutory deadlines. Miss X chased a response to her complaint in November and submitted documents relevant to Y’s assessment.
22. The Council responded to say that Children’s Services were busy, and the Council would respond to Miss X’s complaint once the complaints team received a response from Children’s Services. Three weeks later, Miss X chased again but received no response.
23. In January 2024, the Council responded to Miss X’s stage 1 complaint. Miss X escalated her complaint to stage 2 the same day. Miss X added that she believed the Council had lost important documents she had submitted in support of Y’s SEND assessment.
24. The Council issued it final response in February 2024.
25. The Council acknowledged and apologised for the delays Miss X had encountered from the SEND and Complaints services. It also confirmed that the Council had received the allegedly lost documents, and these were scanned and sent to the SEND assessment service. However, the SEND service did not transfer the documents to Y’s SEND file.

SEND provision decision

26. On 10 January, over a year after Miss X first requested an EHC needs assessment, and 41 weeks after the SEND Tribunal issued an Order, the Council notified Miss X of its decision. The Council decided that it was not necessary for special educational provision to be provided for Y in accordance with an EHC Plan.
27. Miss X submitted an appeal to the SEND Tribunal against the Council’s decision. A hearing date has been set for November 2024.

My findings

EHC needs assessment

28. The Council failed to meet the statutory deadlines for notifying Miss X of its decision following Y’s EHC needs assessment. This was fault. This fault significantly delayed Miss X’s opportunity to appeal the decision to the SEND Tribunal. It also caused a long period of uncertainty and frustration.

Complaints process

29. Miss X complained on 4 October 2023, meaning the Council should have responded by 31 October to comply with the Council’s 28-day timeframe. The Council did not respond until 24 January 2024. This was fault.
30. The Council said the delay was due to the SEND assessment service dealing with high levels of communications which led to delays in responding. The Council acknowledged this was not good enough and was working to increase capacity in the SEND assessment service.

Communication

31. The Council failed to transfer relevant documents to Y’s SEND file. This meant that when Miss X spoke to a SEND officer, they were unable to locate the information. This poor communication caused further distress and frustration for Miss X. This was fault.
32. Miss X was also concerned that a data breach could have occurred if the documents had been transferred elsewhere. I cannot investigate matters related to data breaches. Miss X can contact the Information Commissioners Office (ICO) about this matter.
33. Miss X was also concerned that the Council did not consider this relevant information before reaching its decision not to issue Y an EHC Plan. The SEND Tribunal will consider what information the Council used to support its decision. Therefore, while I have found fault with Council’s general information-handling and communication, I have not considered the impacts this fault may have had on the outcome of Y’s EHC needs assessment.

Council’s actions and service improvements

34. In its response to Miss X, the Council said:
• The SEND assessment service has new case management processes so that cases are not missed and there is a higher level of supervision to ensure individual cases keep moving forward.
• The SEND assessment service has taken measures to increase the service capacity to improve the level of service.
• The Council has restructured the SEND Assessment Service to be more streamlined and efficient as well as increasing staff in this team.
• The Council has commissioned additional Educational Psychologist (EP) support as well as having a long term plan to grow the numbers of EPs. This will also support schools in meeting the needs of those with SEND, both those with and without an EHC Plan.
• The Council has invested an additional £1million to increase the capacity of its EP service and the SEND assessment service.
• It has introduced new systems to track reports, established a new SEND Strategic Board and made free SEND advice available to all schools.
35. I recognise and support all the steps the Council has taken to improve its service. The Council has apologised to Miss X. In addition, the Council has agreed to make a symbolic payment to Miss X in recognition of the delays in both the SEND and Complaints services and the poor communication she received overall.

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Agreed action

36. Within 4 weeks of my decision, the Council has agreed to:
37. Pay Miss X £500 in recognition of the delays in the SEND assessment service which delayed Miss X’s right of appeal. The delays plus the poor communication caused her avoidable distress, uncertainty and frustration.
38. Pay Miss X £500 in recognition of the time and trouble it took Miss X to complaint. This recognises the long delays and the poor communication she experienced.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation. I have found fault with the Council for the significant delays Miss X experienced during her daughter’s SEND assessment.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman