Summary: Ms X complained about the time taken by the Council to assess her son’s special educational needs and issue an Education, Health and Care plan. As a result, her son is not getting support that he should have. We found the Council was at fault for delays in assessing Y and issuing a final Education, Health and Care plan. The Council agreed to apologise, make a payment acknowledge the distress, frustration and uncertainty caused and to issue a final Education, Health and Care plan.

The complaint

1. Ms X complains about the time taken by the Council to assess her son’s special educational needs and issue an Education, Health and Care plan.
2. Ms X says her son is missing out on support he should be entitled to receive.

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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 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)
4. 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)
5. 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.
6. 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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How I considered this complaint

7. As part of this investigation, I considered the information provided by Ms X and the Council. I discussed the complaint with Ms X over the telephone. I sent a draft of this decision to Ms X and the Council for comments.
8. 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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What I found

Law and guidance

9. 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. 
10. 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 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.

What happened

11. In March 2023, Ms X’s son Y, stopped attending his school placement. Ms X chose to take him off the school roll and home educate him.
12. In mid-June 2023, Ms X asked the Council to carry out an EHC needs assessment for Y.
13. In early October 2023, the Council told Ms X it had decided to issue an EHC plan for Y.
14. Ms X complained to the Council in late October 2023. Ms X said 19 weeks had passed since she asked the Council for an EHC needs assessment and Y had still not received a draft EHC plan.
15. The Council issued Y with a draft EHC plan on 13 November 2023. Ms X told the Council shortly after receiving this she agreed with the draft EHC plan.
16. The Council responded to Ms X’s complaint in late November 2023. The Council accepted it had delayed in issuing Y’s EHC plan and apologised.
17. Ms X asked the Council to consider her complaint at the next stage of its complaints process. Ms X said although the Council sent Y a draft EHC plan, he did not have a school placement. Ms X also said she recently contacted the Council and found out her caseworker was off sick but no one was working on Y’s case in their absence.
18. The Council provided its final response to Ms X’s complaint in December 2023. The Council upheld the complaint and said there were significant delays processing Y’s EHC needs assessment and creation of his EHC plan. The Council said it would get a senior officer in its Special Educational Needs Department to prioritise consulting with schools in January 2024.
19. Ms X remained dissatisfied and complained to the Ombudsman. Ms X said the Council has not yet issued a final EHC plan. Ms X said she believes the draft plan with the Council previously issued may no longer be suitable as Y’s needs have worsened since November 2023.

Analysis

20. Ms X asked the Council to carry out an EHC needs assessment in Mid-June 2023. As the Council decided to issue Y with an EHC plan it should have completed the assessment and issued a final EHC plan for Y by early November 2023. Failure to do so was fault.
21. The Council has still not issued a final EHC plan, five months after it should have. While the Council did issue a draft EHC plan in November 2023, it should have issued the final EHC plan after that even if Y did not have a school placement. The Council could have issued a final EHC plan with the school type listed in the plan. If the Council had done this Y could have started to receive some provision in the EHC plan earlier alongside his home tutoring.
22. The delays in assessing Y and issuing a final EHC plan have caused Ms X and Y distress and frustration. Ms X also cannot be sure what support Y is supposed to receive until the Council issues the final plan.
23. In addition to this, Ms X has had her appeal rights to the SEND Tribunal delayed as no final EHC plan has been issued. While Ms X accepted the contents of the draft plan she has said she believes it no longer meets his needs due to the time passed since it was issued.

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Agreed action

24. Within one month of my final decision, the Council agreed to carry out the following:
• Apologise to Ms X for the delays in assessing Y and issuing him with a final EHC plan.
• Pay Ms X £1,000 to acknowledge the distress, frustration and uncertainty caused to her and Y by the delays in issuing Y’s final EHC plan.
• Issue Y with a final EHC plan.
25. Within two months of my final decision the Council agreed to carry out the following:
• Consider what went wrong in this case and why there were such significant delays assessing Y’s EHC needs and issuing his final Y’s EHC plan. Following this, the Council should produce an action plan listing the steps it is taking to address the causes of the delays.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have completed my investigation and found the Council was at fault which caused injustice. The Council agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman