Summary: Miss X complained about how the Council assessed her child, W, for an Education, Health and Care Plan. The Council was at fault for delay in completing W’s assessment and poor communication. This caused Miss X frustration and uncertainty and meant W missed out on four weeks of special educational provision. The Council will apologise and pay Miss X a total of £1000 in recognition of her and W’s injustice.

The complaint

1. Miss X complained about how the Council assessed her child, W, for an Education, Health and Care Plan. She also complained about how the Council consulted with schools and about poor communication.
2. Miss X said this caused her significant stress and had a negative impact on W’s wellbeing and development.

Back to top

The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), 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)
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

How I considered this complaint

8. I have considered:
• all the information Miss X provided and offered to discuss the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
9. Miss X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

10. Children with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section B lays out the child’s special educational needs. Section F sets out the child’s special educational provision and section I ‘names’ the school or type of school the child will attend.
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:
• where a council receives a request for an EHC assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an educational psychologist (EP). Councils must also seek advice and information from any person requested by the parent or young person, where the council considers it reasonable. Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC Plan after an assessment, it should prepare a draft EHC Plan. The council should send the draft Plan to the child’s parent or the young person and give them at least fifteen days to comment. It should also send the Plan to schools that may be able to accept the child or young person and meet their needs. This should take around six weeks; and
• the whole process should take no more than twenty weeks from the point the council received the assessment request to the date it issues the final EHC Plan.
12. There is a right of appeal to the SEND (Special Educational Needs and Disabilities) Tribunal about the special educational provision and placement named in a child’s EHC Plan. This appeal right is engaged once the final EHC Plan has been issued.
13. 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)
14. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 

Alternative provision

15. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

What happened

16. In early May 2023, the Council received a request to assess Miss X’s child, W, for an EHC Plan. At that time, W was enrolled at a mainstream secondary school but had not attended for a few months.
17. In mid-June 2023, the Council decided it would carry out an assessment and sought EP advice.
18. In mid-August 2023, Miss X complained to the Council. She said she was unhappy:
• the Council had not obtained SALT and OT advice to feed into W’s EHC assessment; and
• the EP had not yet provided their report.
19. The Council responded in early September. It responded to Miss X’s concerns about the specialist advice and confirmed it was still awaiting the EP advice. Miss X asked for a stage two response to her concerns.
20. The EP sent their advice in mid-October 2023 and the Council issued a draft EHC Plan in early November 2023.
21. The Council sent its stage two response to Miss X’s complaint in early November 2023. It accepted its communication had not been up to standard and apologised. It confirmed it had been hiring new staff to cope with demand on its service. The Council said it had carried out training and development, including on improving communication from officers. The Council confirmed it had received the EP advice and issued a draft plan. Miss X remained unhappy and complained to the Ombudsman.
22. The Council issued W’s final EHC Plan in mid-January 2024. W’s Plan noted they needed:
• staff to use a large number of different strategies to minimise unnecessary pressure and anxiety and manage their sensory needs;
• access to a social skills programme;
• support reading and spelling; and
• changes to how they received the curriculum to make it more accessible.
23. The Plan named W’s existing mainstream school. Miss X appealed sections B, F and I.
24. During my investigation, Miss X told me:
• the Council had sought new EP advice even though she had already paid for a private report. This meant she felt she had to pay for a second private report;
• she was unhappy the Council had sent W’s draft EHC Plan to schools before it had heard her comments;
• the Council had named W’s current school in W’s EHC Plan without consulting it and when the school could not meet W’s needs. Miss X said since she submitted her appeal, the Council had agreed W needed a specialist placement and had found one starting in September 2024. Miss X therefore feels the appeal could have been avoided;
• in the meantime, W had been out of education since and received only six hours per week of alternative provision;
• she had recently had to pay for doctors letters to evidence why W could not return to their current school; and
• she had sent around 30 emails to the Council but had only received one response.
25. In response to my enquiries, the Council said that since an Ofsted inspection in 2023, it had taken the following action to address delays in EHC assessments.
• Hired new staff into all areas of its EP and wider SEN assessment service.
• Reviewed its compensation package for EP’s, to reduce the number of EP’s who move to other council areas.
• Use of tools and Council officers to improve support for children with SEN before assessment requests are made.
• Use of specific Council officers to obtain advice for EHC assessments, and to follow up when those assessments are delayed.

Findings

Assessment delay

26. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
27. The Council received the EHC assessment request for W in early-May 2023; the Council made its decision to assess within six weeks; this was in line with the timescale so was not fault.
28. Councils must seek EP advice as part of an EHC assessment. This should be received within six weeks of the council requesting it. The EP’s advice was over eleven weeks (almost four months) late. The Council is responsible for the commissioning and delivery of the EP advice and information. The delay in receiving the advice was due to a nationwide shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons why the EP advice took longer than it should have, the delay was nonetheless fault.
29. After the Council received the EP advice, it should have issued W’s final EHC Plan within six weeks, by the end of November 2023. The Council took twelve weeks to finalise W’s EHC Plan. This delay was fault.
30. In total, the Council took almost 36 weeks to assess W and issue their final EHC Plan, instead of the twenty weeks required by the Regulations and the Code. This was a delay of sixteen weeks (four months).
31. I am pleased to see the Council is making efforts to address the demands on its EHC assessment service, as set out in paragraph 25. Because the Council has already taken suitable steps to decrease the wait time for EP advice and improve the SEND department’s service, I have not made a further recommendation.

Assessment delay: injustice

32. The delay in the EHC assessment caused Miss X uncertainty and frustration while she awaited W’s final EHC Plan.
33. I cannot say whether the delay that occurred before the EP gave their advice in October 2023 meant W lost out on special educational provision. This is because EP advice forms a key source of information for the Council to decide what provision to include in a child’s EHC Plan. The EP advice reflected W’s needs as they were in October 2023, not necessarily as they would have been but for the delay. I therefore cannot know, even on the balance of probabilities what the EP advice would have been or what the Council would have taken from that advice for inclusion in W’s EHC plan.
34. However, after the EP gave their advice, the Council should have finalised W’s EHC Plan within around six weeks. It took six weeks too long to finalise W’s EHC Plan. I am satisfied on balance, that the Plan the Council issued in January 2024 is not significantly different from what it would have been if the Council had issued the plan in late-November 2023, as it should have. Therefore, accounting for school holidays, W missed out on four weeks of special educational provision. The Ombudsman typically recommends between £900 to £2400 per term in recognition of lost provision. Taking into account W’s age and the provision in their EHC Plan, I have recommended £500, in line with the Ombudsman’s Guidance on Remedies.

Specialist reports

35. I cannot investigate Miss X’s concern that the Council did not obtain SALT and OT advice during the EHC assessment because the potential injustice stemming from any missing, or inadequate advice was an EHC Plan that did not meet W’s needs. Miss X used her right of appeal to the SEND Tribunal to challenge section F of W’s EHC Plan and the Ombudsman cannot consider any matter which was appealed, or which is closely connected to a matter that was appealed.
36. Miss X also told me she was unhappy the Council had not used her private EP report and that she felt compelled to pay for a second one. We would not normally consider complaints that have not gone through a council’s complaints procedure. However, in this case, I could not investigate even if Miss X had complained to the Council, for the same reasons set out in paragraph 35.

Consulting with schools

37. Miss X is unhappy the Council sent W’s draft EHC Plans to schools before it heard her comments on the draft. Miss X has not complained to the Council about this matter, but I have exercised discretion to consider it because it is closely linked to the matters I have investigated.
38. The Council is required to consult with schools it may name in a child’s EHC Plan, before finalising that plan. There is no requirement for the Council to wait to hear a parent’s view before consulting with schools, so it was not at fault.
39. Miss X is also unhappy the Council named W’s current school in their EHC Plan, without consulting with it, only to agree to a specialist placement after she appealed. However, Miss X appealed the Council’s decision to name W’s current school in their EHC Plan. As set out above, the Ombudsman cannot consider a matter which was appealed, or which is closely connected to a matter that was appealed. Whether or not the Council properly consulted with W’s school is closely connected to Miss X’s appeal, and the Council’s decision to name W’s school was itself subject of the appeal. Therefore, I cannot investigate.

Communication

40. The Council has accepted it was at fault for poor communication. Based on Miss X’s account, I agree it was at fault. This caused Miss X avoidable frustration.

Alternative provision

41. Miss X said W has been out of education since spring 2023 and has had limited alternative provision. She is unhappy she has had to pay for doctors letters to evidence W’s inability to return to their current school. I have not considered this matter further because Miss X has not complained to the Council about them and it is reasonable for her to do so.

Back to top

Agreed action

42. Within one month of the date of my final decision, the Council will take the following actions.
• Apologise to Miss X for the frustration and uncertainty she felt due to the delay in assessing W for an EHC Plan and its poor communication with her. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology.
• Pay Miss X £500 in recognition of that frustration.
• Pay Miss X a further £500 in recognition of the impact of the lost special educational provision on W.
43. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

44. I have completed my investigation. I have found fault leading to personal injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman