Summary: Mrs X complained about the Education, Health and Care Plan process. She said the Council had delayed identifying a specialist placement for her son. She also said the Council’s communication had been poor. We find the Council was at fault. This caused significant distress to Mrs X. To address this injustice caused by fault we recommend the Council apologise, make a symbolic payment and remind staff of the statutory timescales.

The complaint

1. The complainant, Mrs X, complains about the education, health and care (EHC) Plan process. She said the Council has failed to implement her son’s EHC Plan. She also said the Council’s communication has been poor.

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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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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

8. I have investigated all of Mrs X’s complaint. We would not normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal.
9. The EHC Plan was finalised in June 2023. But I consider it would have been unreasonable for Mrs X to have appealed to the Tribunal. This is because the Council was taking steps to resolve the disagreement by consulting with schools.

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How I considered this complaint

10. I spoke with Mrs X about her complaint. I considered all the information provided by Mrs X and the Council.
11. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plans

12. 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. 

Timescales and process for EHC assessment

13. 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: 
14.  

• 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);  
• 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.

Summary of the key events

15. Mrs X made a request to the Council for an EHC needs assessment for her son, B, on the 17 October 2022. The request was sent by B’s nursery.
16. The Council said it received the needs assessment request on the 3 November 2022 and said it would let Mrs X know within six weeks whether an assessment would take place.
17. The Council agreed to an assessment on 14 November 2022. It agreed to issue a draft EHC Plan on 15 February 2023. The draft EHC Plan was issued on the 22 February 2023.
18. The Council began to consult with schools in February 2023. Mrs X asked the Council to consult with a specialist placement, school A.
19. The Council issued a pre-panel consultation to school A in March 2023. In response towards the end of March, the school said B’s needs were not in line with children attending the learning disability (LD) placement and said he would be more suited for a severe learning disability (SLD) placement.
20. Mrs X asked the Council for an update in May 2023. She asked the Council to consult with an SLD school, school B. The Council agreed and said the case would be considered by its panel. The Council agreed to look into whether it was possible to defer B for a year and find a nursery for him to attend for an extra year.
21. The Council consulted with school B. But this school said they were unable to meet B’s needs as they said B was not operating in the SLD cognitive range.
22. The Council’s panel considered the consultation responses in May 2023. It said it agreed to an LD provision. But it noted that school A had said an LD observation would be required for a decision to be made. It was therefore agreed school A would need to first observe B.
23. The Council contacted B’s nursery to see if B could stay on for an extra year. But the nursery said it did not have capacity. The Council relayed this to Mrs X.
24. A mainstream school previously consulted, school C stated they did not have capacity and could not meet B’s needs. But the Council sent a direction letter to this school. It said it was of the view that B’s attendance was appropriate for his special educational needs. It said it would proceed with naming school C in the EHC Plan.
25. The Council spoke with Mrs X in June 2023. It said it had asked school A to arrange to observe B in school. It also explained that it had directed school C.
26. B’s EHC Plan was finalised on 8 June 2023. It named school C from September 2023 which was a mainstream setting.
27. School A spoke with the Council the following month. They said they did have capacity to carry out the observation before the end of term. School A said they would contact B’s school during the first week of September to arrange a visit.
28. Mrs X asked the Council for an update towards the end of July 2023. She said she was concerned as they were no closer to B being accepted into a specialist setting.
29. The Council apologised for not being in touch with Mrs X sooner. It explained school A did not have the capacity to observe B before the summer break. It said the school would contact B’s school in September 2023.
30. Mrs X contacted the Council in September 2023 asking for an update. The Council said school A had given feedback on their observations last week. It was noted school A said B had settled in well at school C. But they said they wanted to gather further information once B had been in school for half a term. The Council said it would contact school C near to half term asking for an updated assessment.
31. The Council spoke with Mrs X in January 2024. She said she was angry with the lack of progress.
32. The Council contacted school C to see if it had further information it could send to school A. The Council then issued a further consultation to school A in January 2024 and informed Mrs X.
33. School A responded the following month and said they could not meet B’s needs. This was because they said B was working at a lower level than a potential LD cohort. They said B would need to attend an SLD placement.
34. Mrs X asked for an update towards the end of March 2024. The Council said managers were in discussions with school A regarding a place and confirmed start date for B. It said it would contact Mrs X as soon as things were confirmed.
35. On the same day, the Council told school A to support B, it could provide additional funding in line with that given to an SLD setting.
36. Mrs X asked the Council for an update in May 2024. The Council apologised for going quiet. But said it was reluctant to give half pieces of information. It said management were in discussions with school A to establish how B could be supported there. But it was noted nothing had been confirmed.
37. School A contacted the Council in the same month to express their concerns around being able to meet B’s needs. The Council agreed to provide the additional funding and the EHC Plan was finalised in May 2024 naming school A from September 2024.

Complaint to the Council

38. Mrs X complained in June 2023. She said it had been eight months since she submitted her application and said there was still no outcome. She also complained about the lack of communication.
39. The Council responded the following month and said:
• Mrs X had submitted the EHC needs assessment request on the 3 November 2022;
• the draft EHC Plan was issued within the statutory timeframes;
• the final EHC Plan should have been issued by the 23 March 2023. It apologised;
• the plan had now been issued;
• it apologised if she had difficulties engaging with members of the team. But said it had no evidence that Mrs X had made attempts to contact the service; and
• as part of the ongoing recruitment process, County Leads were currently compiling a list of training requirements for current teams and new recruits. This is to ensure there is a clear understanding of all processes, and to ensure that information being shared is both accurate and informative.
40. Mrs X made a further complaint in September 2023 about how B’s EHC Plan had been dealt with. She said they were still waiting for a place at a specialist setting and complained about the lack of communication.
41. The Council responded in January 2024. It said:
• Mrs X had made the request for a specialist placement in May 2023. It was discussed by the Council’s panel. The Council requested school A complete observations and provide feedback;
• Mrs X was given this feedback in September 2023. But noted no updates were provided after this as the case officer left in December 2023. It apologised;
• it upheld Mrs X’s complaint about the delay in finding a specialist placement as it said case work was not actioned;
• the new case officer had liaised with the school to obtain an updated assessment and arranged a phone call with Mrs X to update her on developments;
• to improve its services it had implemented new processed. It required all EHC co-ordinators and provision co-ordinators to have available call back slots; and
• there is ongoing staff training highlighting the need for positive communication area teams.

Analysis- was there fault by the Council causing injustice?

42. Mrs X’s request for a needs assessment is dated the 17 October 2022. But the Council said it received the request on the 3 November 2022. It agreed to assess on the 14 November 2022. But the final EHC Plan was not issued until the 8 June 2023. This is fault and not in line with the statutory timescales. We acknowledge that the Council has acknowledged this and apologised. But this did cause significant stress to Mrs X.
43. Mrs X made her request for a specialist placement, school A, towards the end of February 2023. The Council acted promptly and issued a consultation to school A the following month. school A responded in March 2023 and said it could not meet B’s needs and said an SLD placement would be more suitable.
44. Mrs X asked for an update in May 2023 and asked the Council to consult with an SLD placement. We acknowledge that the Council issued a consultation to school B. But apart from one consultation issued in March, there is an unexplainable drift in this case between March and May 2023. This is fault.
45. The Council’s panel considered the school’s consultation responses in May 2023. It agreed to an LD provision. But it was noted following school A’s consultation response, they needed to complete an LD observation. This was a decision for the Council to take and I cannot question it. The EHC Plan was finalised and named school C.
46. School A completed the observation in September 2023. This was because they did not have capacity to carry it out sooner. We could not criticise the Council for this. Following the observation, school A said they wanted to gather further information once B had been at school C for half a term. The Council agreed to contact school C near to half term asking for an update.
47. Mrs X asked for an update in January 2024 and the Council agreed to contact school C to ask for an update. But as stated in paragraph 46, the Council had agreed to contact school C near to half term. Therefore, there is a delay. This is fault.
48. Following this, the Council was in discussions with school A to establish how B could be supported. The Council agreed to provide additional funding and the EHC Plan was amended in May 2024, naming school A from September 2024.
49. As there is fault in this case, we have to consider the injustice caused. If the fault had not occurred, I could not say a school place would have been in place sooner. This is because the school did not have capacity to complete an observation sooner and the agreed placement is for a September 2024 start. But this did cause significant distress to Mrs X and she spent unnecessary time and trouble in contacting the Council for updates.
50. The Council has provided us with evidence of steps it is currently taking to enhance it services. It said:
• the Council will allocate EHCP cases across a broader range of teams to improve quality and timeliness of new and existing EHCPs;
• additional funding has been provided to recruit and train more staff; and
• it will increase capacity to have smaller caseloads specifically according to need/stage of assessment in statutory SEND delivery.

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Agreed action

51. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Mrs X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Mrs X £500 for the avoidable distress, time and trouble caused by the Council’s actions.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman