Summary: The complainant, Mrs X, complained about how the Council had dealt with her education, health and care plan needs assessment request; the Council’s failure to adhere to legal timescales; and the Council's failure to respond to her complaint. We find the Council was at fault. This caused Mrs X significant distress and delayed provision being in place for her daughter. The Council has agreed to make several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Mrs X, complains about:
1. how the Council has dealt with her education, health and care (EHC) plan needs assessment request;
2. the EHC Plan process and said the Council has failed to adhere to legal timescales; and
3. the Council’s failure to respond to her complaint.
2. Mrs X said because of the failures, her daughter missed out on education.

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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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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.
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.
8. 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

9. I have investigated parts a, b and c of the complaint. I do not consider it was reasonable to have expected Mrs X to have appealed the Council’s decision to initially refuse to complete an assessment. This is because Mrs X requested mediation which was delayed. The Council then overturned its decision before Mrs X had the opportunity to appeal.
10. I have not investigated the Council’s decision to not complete an occupational therapy assessment. This is because Mrs X had the right of appeal against the content of the plan in June 2023. I consider it was reasonable to expect her to use this right.

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How I considered this complaint

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

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What I found

EHC Plan

13. 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

14. 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;
• if the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal;
• 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; and
• 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).

Mediation

15. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal. They do not have to agree to attend mediation.
16. Councils must arrange mediation within 30 days from the date the person told the Council they want to mediate. Councils cannot refuse mediation or make someone attend another form of meeting beforehand.

Compulsory school age

17. The code states the end compulsory school age is the end of the academic year in which a young person turns 16.

The participation of young people in education, training and employment

18. The guidance states tracking young people’s participation is a key element of the Council’s duties. Councils are required to collect information about young people so that those who are not participating, or are not in education, employment or training, can be identified and given support to re-engage. This applies for 16- and 17-year-olds.
19. Councils must make arrangements such as maintaining a tracking system to identify 16- and 17-year-olds who are not participating in education or training.

Summary of the key events

20. Mrs X submitted a request for an EHC needs assessment for her daughter, Ms Y, on the 29 June 2023.
21. The Council acknowledged her request the following day and contacted Ms Y’s school. It asked the school to complete a needs assessment request form.
22. The school completed the form on the 18 July 2023. This included a provision map. Both of these forms detailed Ms Y’s needs and what the school had put in place. This included 1:1 mentoring support, small group teaching, emotional literacy support assistants and supported breaks and lunch. The school also provided Ms Y’s year 11 report.
23. The Council wrote to Mrs X on the 3 August 2023. It said it had decided not to undertake an EHC needs assessment. It said based on evidence available, Ms Y’s needs could be met through support that could be provided from resources that are ordinarily available at their educational setting.
24. The Council later told Mrs X its panel stated no professional advice was received from Ms Y’s school. The Council advised Mrs X to speak with the school about this. It said the school could request high needs funding for Ms Y without the need for an EHC Plan.
25. Mrs X put in her request for mediation on the 3 August 2023.
26. Mrs X contacted global mediation later in the month as she had not heard anything. They said the case had been sent to the Council on the 4 August 2023. But said they had not had a response.
27. The Council contacted Mrs X on the same day and offered to meet with Mrs X on the 11 September 2023 prior to any formal mediation. It said this was to learn more about Ms Y’s needs and provision in place.
28. Mrs X said if the Council could not arrange mediation within the 30-day legal timeframe, she would proceed to the next stage of the Tribunal process.
29. When the Council wrote to Mrs X, it included Ms Y’s father’s name. Mrs X questioned this as Ms Y’s father is not involved and she said he should be removed. In response, the Council said it had taken his name from the schools EHC needs assessment request form and apologised.
30. Mrs X made the school aware of the Council’s decision. But the school said they had sent their information to the Council on the 18 July 2023, followed by the Council’s acknowledgment.
31. The Council wrote to Mrs X in September 2023. It said in light of new evidence following the recent inclusion planning meeting, it had now agreed to complete a full needs assessment. It advised Mrs X that there was currently a shortage of educational psychologists (EP) and therefore was likely to be a delay in allocating an EP to carry out an assessment.
32. Mrs X questioned the Council’s timeframe for completing the process. But the Council said the original decision not to agree to assess was made on the 3 August 2023 and the statutory clock was stopped. It said following evidence from the school, it made a decision to agree to assess on the 16 August 2023 so therefore this counted as day one of the assessment.
33. Mrs X complained to the Council in October 2023. She said:
• the Council was in breach of its duty as an EP assessment had still not been arranged;
• incorrect information had been used to form the decision to decline the needs assessment;
• there had been a failure to submit the school’s submission to the panel when considering the needs assessment request;
• the Council had failed to respond to global mediation within the 30-day period; and
• the Council had included Ms Y’s father in an email stating he was mentioned in the request. But said he was not part of Ms Y’s life.
34. In November 2023, Mrs X asked for an update on her complaint. She asked for a further update in December 2023.
35. The Council apologised for the delay and said it had requested an update on when Mrs X would receive a response.
36. Mrs X contacted the Council in January 2024. She said she had still not had a response to her complaint. She also said there was no progress with the needs assessment process. The Council said it would ask an officer to update her by the 19 January 2024.
37. Mrs X contacted the Council on the 21 January 2024. She said she had not had an update from the Council as agreed. The Council said it would continue to monitor the delay. But Mrs X asked the Council to escalate her complaint to stage two of its process.
38. The Council responded to Mrs X at stage two of its complaints process in March 2024. It said:
• it was sorry for the delay in her receiving a stage one response;
• it was sorry for the delays experienced within the needs assessment process. It said it was doing all it could to address the shortage in resources;
• it is not appropriate to expedite a case because of a stage two review; and
• Mrs X’s concerns about the quality of the decision making was not within the scope of the complaint process. This is because it said it carried the right of appeal to the Tribunal.
39. An EP report was completed in March 2024. It was noted that Ms Y would benefit from having a trusted key adult available. It also noted that Ms Y’s needs and the difficulties she had faced accessing learning had impacted significantly upon her mental health.
40. In the following month Mrs X contacted the Council. She said she would like Ms Y’s needs to be explored via an occupational therapist (OT) as part of the needs assessment.
41. The Council contacted its OT team. But the team said it would not be assessing Ms Y. They said if Mrs X had concerns, she could make a referral to the team via Ms Y’s GP.
42. The Council sent Mrs X the draft EHC Plan on the 30 April 2024. It consulted with Ms Y’s current school.
43. A meeting was arranged in May 2024 between Mrs X and the Council to discuss amendments to the EHC Plan. Mrs X also made a request for an OT assessment as she said Ms Y had many sensory needs.
44. The Council sent Mrs X a revised draft plan in the same month. Mrs X sent in some further comments.
45. The Council told Mrs X it had received a response from the EP. The EP said there was no evidence Ms Y’s needs required assessment or support from sensory OT. The Council said it would not make any further amendments.
46. The Council had previously consulted with a college but had not yet received a response. It told Mrs X if her preference was for Ms Y to remain at her current school, it would need to be considered by its panel. This was because a request had been made for additional funding.
47. The Council finalised Ms Y’s EHC Plan on the 13 June 2024. It named her current school. It also said:
• Ms Y would benefit from having a trusted key adult suitably qualified to provide her with support;
• Ms Y required a high level of structure, routine and predictability in daily activities to reduce feelings of uncertainty and subsequent anxiety; and
• Ms Y would have a programme of support aimed at developing her independent living skills.
48. In the following month, the Council told Mrs X its panel had not agreed to fund a specialist teacher. It said Ms Y could remain at the current school on a bespoke package. But said it was the responsibility of the school as they originally agreed to this package. It also said the school could still apply for additional funding to support Ms Y.

Analysis- was there fault by the Council causing injustice?

Parts a and b of the complaint

49. Mrs X made her request for a needs assessment on the 29 June 2023. In response, the Council asked the school to complete a needs assessment request form. From the evidence provided by the Council, the school sent this information on the 18 July 2023. This included a provision map detailing Ms Y’s needs, and what the school had put in place. This is further detailed in paragraph 22.
50. The Council refused to complete an assessment. It said it had not received any professional advice from the school. Mrs X requested mediation on the 3 August 2023 as she did not agree with the Council’s decision. I have seen evidence stating the global mediation team sent this request to the Council the following day.
51. Guidance states councils must arrange for mediation within 30 days of the complainant telling the Council they want to mediate. In this case the Council wrote to Mrs X on the 11 September attempting to arrange a meeting before any formal mediation would take place. Therefore, this falls outside of the 30-day timeframe. This is fault.
52. On the 20 September 2023, the Council wrote to Mrs X. It said in light of new evidence, it had agreed to complete a full needs assessment. I asked the Council why it decided to complete an assessment after the initial refusal. It said it had not initially received any evidence from the school regarding Ms Y’s needs and the support and intervention in place. But as stated in paragraph 49, the school did send this information on the 18 July 2023. I therefore consider this to be fault and the statutory clock should have run from the request for assessment and not from the date the decision was reversed.
53. There is service failure due to the Council’s inability to commission an EP within the statutory timescales. The LGSCO is aware of the problems arising from a national shortage of EPs, which in turn has created a significant delay in the completion of Ms Y’s EHC Plan.
54. As there is fault in this case, we have to consider the injustice caused to Mrs X and Ms Y and provide a remedy. The EHC Plan should have been finalised by the 16 November 2023, therefore, there was a delay in Ms Y receiving the specialist provision. This caused Mrs X and Ms Y significant distress.
55. Because of the delays in obtaining an EP assessment, we can assume the EP report and final EHC Plan reflect Ms Y’s needs now. But we cannot guess what provision would have been had the plan been issued within timescales. Therefore, we recommend a payment of £100 per month from 20 weeks up until the final plan is issued in acknowledgement of the uncertainty caused to Ms Y.
56. We have previously acknowledged the proactive steps the Council is taking to try and resolve the lack of EP’s in case 23011004. This includes:
• increasing the substantive full-time equivalence of EP’s;
• reviewing pay and conditions to attract EP’s;
• undertaking recruitment campaigns including recruiting from oversees;
• increased numbers of trainee EP’s and assistant EP’s to supplement EP’s work; and
• measures are in place so if an EHC needs assessment reaches 20 weeks and the process remains incomplete, then temporary funding will be paid to the school where the young person is on roll. This is so additional and sustainable support can continue to be made available.
57. The Council told us it provided the temporary funding to Ms Y’s school from the spring term in 2024. But I have not seen any evidence to suggest the Council considered providing temporary funding to Ms Y’s school before this. This is fault. The Council said it tracks all EHC needs assessments and when the 20-week stage is reached, it will arrange funding to be assigned to the school. As stated in paragraph 54, the EHC Plan should have been finalised in November 2023.

Part c of the complaint

58. Mrs X complained to the Council in October 2023. She continued to chase a response. The Council’s complaints policy says it aims to respond to complaints within 10 working days, with a maximum of 20 working days. Mrs X did not receive a response to her complaint within these timescales. This is fault.
59. In January 2024 as Mrs X had not received a response, she requested her complaint be escalated to stage two. The complaints policy states a stage two response is sent within 20 working days. But in this case the stage two response was sent outside of this timescale. This is evidence of further fault. We acknowledge that the Council has apologised to Mrs X for the delay. But this did mean Mrs X spent unnecessary time and trouble in contacting the Council.
60. I have not recommended a service improvement regarding the delays in responding in a timely manner. This is because we made a recent recommendation in case 23011004 made in March 2024. In that case the Council evidenced it had delivered staff sessions on a range of issues, including communication. The Council is in the process of finalising a programme of training and communication will be incorporated into this. We must give the Council the chance to implement this.

Lack of education

61. Mrs X said because of the failures, this resulted in a loss of education as she said Ms Y was only timetabled in for eight hours of learning every fortnight. Paragraphs 18 and 19 set out the Council’s duties around education for 16–17-year-olds. I note that Ms Y would have been 16 at the end of the 2023 academic year and therefore over the compulsory school age.
62. In July 2023 the needs assessment request noted Mrs X had requested the assessment due to Ms Y not accessing lessons. The school also provided the Council with details of what support the school had put in place. This included 1:1 support, small group teaching, emotional literacy support assistants and supported breaks. The Council considered this information and agreed to assess in September 2023.
63. The Council’s duty in this case was to give support to Ms Y to re-engage if she was not in education. In my view we could not criticise the Council. It considered the initial information provided by the school and made the decision the part-time timetable was suitable and in Ms Y’s best interests. This is a decision for the Council to make.

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Agreed action

64. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Mrs X and Ms Y 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; and
• pay Ms Y £700 in recognition of the impact of the delay in finalising the EHC Plan.
65. The Council should provide us with evidence it has complied with the above actions.

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Final decision

66. There was fault by the Council. The actions the Council has agreed to 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