Summary: The Council failed to carry out an Education, Health and Care Needs assessment for Mrs X’s child, Y, within the statutory timeframes. The Council’s communication with Mrs X was also inadequate. These faults caused distress and frustration to the family. We are satisfied with the service improvements the Council is carrying out to resolve this issue. The Council has agreed to apologise and make a payment to recognise the personal injustice to Mrs X and Y.

The complaint

1. Mrs X complains that the Council:

• failed to complete an EHC Needs Assessment for her child, Y, and issue an EHC Plan within statutory time limits;
• failed to respond to contact from herself and solicitors; and
• failed to consult with one of the preferred schools.

2. Mrs X said this has caused Y’s mental health to decline and caused distress to their family because Y does not have a suitable special educational provision. Mrs X also says this has caused her financial losses as she has had to fund private education for Y.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
5. 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. (Local Government Act 1974, section 26(5), section 34(B)6)
6. The courts have established that if someone has appealed to the SEND 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)
7. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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What I have and have not investigated

8. I cannot investigate matters relating to Mrs X’s complaint that the Council failed to consult with one of the preferred schools. This is because Mrs X has not complained to the Council about this issue. 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.
9. In addition to this, I have not investigated events that happened before May 2023. This is because these matters relating to the initial EHC application and assessment have already been considered as part of an appeal. Therefore, I am unable to make any substantive findings on anything that happened before May 2023 which is when the SEND tribunal ordered the Council to issue an EHC plan for Y.

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How I considered this complaint

10. I have considered the information Mrs X and the Council provided.
11. Mrs X and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

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What I found

Law and guidance

EHC Plan 

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.

Timeframes 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.

Advice and Information for EHC needs assessments

14. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

15. Those consulted have a maximum of six weeks to provide the advice. 

SEND Tribunal

16. 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.

EHC plan following SEND Tribunal

17. Regulation 44 of the Special Educational Needs and Disability Regulations 2014 says that where the SEND tribunal requires a Council to issue a plan, the Council must issue a draft plan within five weeks of the order and send a copy of the finalised plan within 11 weeks of the order.

Council’s complaints procedure

18. The Council’s complaints procedure says that the Council aims to reply to complaints within 10 working days. However, if for any reason it is likely to take longer it will let a complainant know. The Council says it aims to respond to stage two complaints within 20 working days.

The Council’s Customer Promise

19. The Council has a Customer Promise, which says it is committed to good customer care and aims to deliver the best service possible. The Customer Promise says the Council will:

• answer requests the first time or if it cannot immediately resolve the issue, it will tell the customer clearly what will happen next, so they know what to expect.
• update customers on the progress of issues so they know what is happening next and by when.

Local Government and Social Care Ombudsman Principles of Good Administrative Practice

20. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction ‘Principles of Good Administrative Practice’. This includes “dealing with people helpfully, promptly and sensitively, taking account of their individual circumstances” and “taking responsibility for actions”.

What happened?

21. Mrs X asked the Council to complete an EHC needs assessment for Y in November 2021. The Council at first declined to complete this assessment. Mrs X appealed to the SEND tribunal about this decision, which then ordered the Council to complete an assessment.
22. Following this assessment, the Council decided not to issue an EHC plan for Y. Mrs X appealed to the SEND tribunal again about that decision.
23. On 15 May 2023, following this appeal, the SEND tribunal ordered the Council to issue an EHC plan for Y. The tribunal ordered the Council to issue a draft EHC plan within five weeks and a completed plan within 11 weeks.
24. On 5 July, Mrs X made a stage one complaint to the Council. She said the Council had failed to adhere to the statutory timeframes for issuing an EHC plan for Y. Mrs X also complained the Council had ignored emails she had sent.
25. The Council issued a draft EHC plan on 6 July.
26. On 20 July, a solicitor instructed to act on behalf of Mrs X contacted the Council. However, we have no evidence that the Council responded to this letter.
27. Mrs X contacted the Council again on 17 August. She said she was unhappy the Council had ignored her and her solicitor and the Council had not followed the court orders. Mrs X told the Council the continuing delay was affecting Y’s mental health.
28. The Council responded to Mrs X the next day to say it would investigate this and get back to her.
29. The Council responded to the stage one complaint on 29 September. It apologised for the delay in responding. The Council upheld Mrs X’s complaint and said the draft EHC plan was issued outside of the five-week timeframe.
30. Council records show that on 1 October, a council officer contacted Mrs X in response to her contact in August. During this conversation, Mrs X and the Council agreed a number of actions to progress the plan.
31. As Mrs X was unhappy with the Council’s stage one complaint response, she sent a stage two complaint at the end of October. She said the Council continued to be in breach of the court order as it had failed to issue the final EHC plan within the required timeframes. Mrs X said the delay was causing an “ongoing significant cost to a vulnerable child”.
32. Mrs X contacted the Council again on 1 November to ask why it had still not issued the final EHC plan. Mrs X was also unhappy that she had not had any contact with the allocated worker since 1 September.
33. Mrs X contacted the Council again on 9 November to ask for an update.
34. The Council telephoned Mrs X on 14 November as she had contacted them again to ask for an update. The Council provided an update on the progress of the EHC plan and offered to improve communication by providing a weekly email or telephone call. However, Mrs X said that she didn’t need support, instead she wanted the Council to fulfil its statutory duty.
35. Mrs X contacted the Council again on 21 November to express her dissatisfaction the Council had still not issued the final EHC plan.
36. The Council responded to the stage two complaint at the end of November. It upheld the complaint and said it had failed to adhere to the required timeframes. The Council apologised for the delay and said a council officer would provide an update by the end of the week on the progress of the plan.
37. The Council emailed Mrs X again on 15 December accepting the delay in issuing the final plan. It said this was partly due to a change in the officer dealing with this matter. The Council again apologised for the delay and the frustration this may have caused.
38. The email said Mrs X had asked for some amendments to be made to the draft plan and the officer would consider these and provide a second draft by 22 November. However, Mrs X says the Council did not issue a second draft.
39. On 15 December Mrs X emailed the Council again to ask for an update. Mrs X included a judicial review pre-action protocol letter with this email.
40. A telephone call took place between Mrs X and the Council on 8 January 2024. During this call, Mrs X said that Y had started a new school in 2023 and had settled in well. The new school was an independent boarding school that Mrs X was funding. Mrs X says the family decided to enrol Y at a new school as they did not feel a mainstream school could provide appropriate support.
41. Council records show that in this conversation Mrs X said that she would prefer the Council to wait until it had received school consultations back to issue the final draft. The Council told Mrs X this would likely mean the final plan would be issued around the first week of February at the latest.
42. The Council issued the final EHC plan on 15 February 2024. This named the local mainstream school, which the Council stated could meet Y’s needs. Mrs X disagreed with this and has exercised her right to appeal the school named in the EHC plan and this matter will be considered at tribunal.

Analysis

Delays in issuing the EHC plan

43. We expect councils to follow the statutory timeframes set out in the law and the Code.
44. The Council should have issued a draft EHC plan by 19 June 2023. However, the Council did not issue this until 6 July 2023. The Council should also have issued the final EHC plan by 31 July 2023. However, the Council did not issue this until 15 February 2024. This created a delay of almost seven months. This is not in line with the statutory timeframes and is fault.
45. This has caused frustration and distress to Mrs X and Y.
46. The Council said this delay was because of a change of assessment officer due to the original officer leaving the team, several internal checks with health, educational psychology and senior officers. It also said there was a change of parental preference in January 2024 and this contributed to one month of the overall delay. However, Mrs X says she does not agree with the Council’s view that she changed her parental preference.
47. In response to this complaint, the Council said it has recognised the significant delays and to mitigate such delays in the future it is considering several service improvements. This includes improving processes of handover between officers when these need to happen, better processes of internal decision making including a limit on the number of times cases should be discussed at internal panel meetings. The Council said it was also planning on tracking assessment cases over 20 weeks through more regular and robust meetings to address ‘stuck’ cases.

Communication from the Council

48. There is evidence that Mrs X and her solicitor contacted the Council on several occasions and the Council either failed to respond or the responses were significantly delayed. This is not in line with the Council’s Customer Promise which says it will answer requests at first contact or tell customers clearly what will happen next, so they know what to expect.
49. This is also not in line with the Ombudsman’s published guidance document which sets out the standards we expect from bodies in jurisdiction called ‘Principles of Good Administrative Practice’. This includes “dealing with people helpfully, promptly and sensitively, taking account of their individual circumstances” and “taking responsibility for actions”.
50. I find fault in the failure of the Council to respond to Mrs X and her solicitors communications in a timely manner and on some occasions it did not respond at all. This caused Mrs X further frustration.
51. Following Mrs X’s stage one complaint, it also took the Council 12 weeks to respond. The Council’s policy says it will respond to stage one complaints within 10 working days or it will inform the complainant. This did not happen, and this is fault causing Mrs X frustration.
52. This significant delay caused further avoidable frustration to Mrs X.

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Agreed action

53. Within one month of the date of my final decision, the Council will take the following actions.

• apologise to Mrs X for the frustration and distress she felt due to the delay in issuing the EHC Plan and its poor communication with her;
• make one payment of £500 to Mrs X and Y together in recognition of the frustration and distress caused to them by the Council failing to adhere to the statutory timeframes for issuing an EHC plan; and
• make a payment of £150 to Mrs X in recognition of its inadequate communication with Mrs X.

54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have completed my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman