Summary: The Council was at fault for a delay in deciding Mrs B’s son’s special educational needs support. Its decision – which is yet to be made – is currently five months late and counting. It has agreed to make this decision without further delay, and it will make a symbolic payment to Mrs B to recognise her son’s likely injustice from the delay so far.

The complaint

1. The complainant, whom I refer to as Mrs B, complains about how long the Council has taken to decide the support her son, C, should receive for his special educational needs (SEN). She says part of the problem has been that the Council failed to commission an occupational therapy assessment.
2. Mrs B also complains that the Council has failed to consistently provide suitable education to C since March 2022, when it became aware that he was struggling to attend school because of mental health issues.
3. Mrs B says the Council’s failings have caused C distress, as he has missed out on educational support.

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The Ombudsman’s role and powers

4. 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)
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. The law says we cannot normally investigate a complaint unless we are satisfied the council 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 council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
8. If we are satisfied with a council’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)
9. 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 have and have not investigated

10. I have considered Mrs B’s complaints about the delay in deciding C’s SEN support, and about the Council’s delivery of his education since March 2022.
11. However, I have not investigated Mrs B’s complaint about the Council’s failure to commission an occupational therapy assessment for C. This is because the assessment (or lack thereof) will have a material effect on the Council’s eventual decision about C’s support.
12. Mrs B will have a right of appeal to the SEND Tribunal against the Council’s eventual decision if she remains dissatisfied. The Tribunal will be able to consider whether an occupational therapy assessment is needed. Consequently, I will not investigate this aspect of her complaint.

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How I considered this complaint

13. I considered information from Mrs B and the Council. I also considered the ‘Special educational needs and disability (SEND) code of practice’, which provides statutory guidance to councils on meeting children’s SEN.
14. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Council’s responsibilities

15. A child with SEN 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.
16. If a council receives a request to reassess a child’s SEN, it must tell the child’s parent within 15 days whether it intends to do a reassessment. (SEND code paragraph 9.190)
17. If the council decides to do a reassessment, it must issue the new EHC plan as quickly as possible, and within 14 weeks of its decision to reassess. (SEND Code paragraph 9.192)

What happened

18. In July 2023, the Council decided to reassess C’s SEN. It told Mrs B this in September.
19. In December, Mrs B complained to the Council. She said the Council had not progressed its reassessment or sought the external professional assessments C needed.

20. The Council replied, explaining the actions it had taken on C’s case. But Mrs B remained dissatisfied and, in January 2024, complained again.
21. She said there had still not been an assessment of C by an educational psychologist (which is needed before an EHC plan can be issued). She repeated her view that the Council had made no progress on the reassessment. She also said, “My child is currently unable to access school and is receiving no suitable education. An up to date and relevant EHC [plan] is imperative”.
22. The Council replied, acknowledging that C’s educational psychology assessment was “forthcoming”. It apologised for how long the reassessment was taking.
23. In April, the Council told Mrs B that its SEN panel had considered C’s case and, following this, C’s case worker would draft a new EHC plan.
24. Mrs B says the new plan is not complete. In her complaint, she also complained that:

[The] Council failed to provide alternative fulltime educational provision from March 2022 when it was made clear … that my child had been struggling to attend school due to his disabilities and complex mental health difficulties for an extended period of time.

My findings

25. Although Mrs B did raise the fact that C is out of school in her stage 2 complaint to the Council, this was described in the context of his late EHC plan – in that he needs the new plan to get back into school.
26. But the Council has not had a proper opportunity to respond to the complaint as Mrs B described it in her complaint to the Ombudsman (that the Council has failed to provide proper education to C since March 2022).
27. Consequently, I will not consider this aspect of Mrs B’s complaint any further. She should make it in full to the Council as a separate complaint. If, having received the Council’s final response, she remains dissatisfied, she can come back to the Ombudsman.
28. However, in relation to the other aspect of Mrs B’s complaint – the EHC plan delay – it is clear that the Council is at fault. There was a two-month delay in telling her that there would be a reassessment of C’s needs, and a five-month delay (and counting) to the plan itself.
29. Although I can see that the Council has not necessarily been inactive during the period of delay, as it has sought assessments and brought C’s case to its SEN panel, the timescales in the SEND code are statutory and therefore non-negotiable.
30. Until the Council issues C’s final EHC plan, it is difficult to know the extent of his injustice (in that we do not know yet exactly what will be in the new plan, and therefore how much SEN support he is missing).
31. However, it is likely that he is suffering some injustice from missed support, because otherwise the Council would not have felt it necessary to reassess his needs or issue a new plan.
32. The Council should make a symbolic payment to Mrs B to recognise that C has likely suffered some injustice from the delay so far. It should also commit to completing C’s EHC plan without further delay.

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Agreed actions

33. Within a month, the Council has agreed to:
• Complete C’s final EHC plan and send it to all relevant parties (including
  Mrs B).
• Make a symbolic payment of £1,000 to Mrs B, on C’s behalf, to recognise C’s likely injustice from the delay to his EHC plan.
34. Within two months, the Council has also agreed to provide us with an action plan which sets out how, in future, it will avoid similar failures to complete timely SEN reassessments.
35. The Council will provide us with evidence it has done these things.

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Final decision

36. The Council was at fault.

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Investigator's decision on behalf of the Ombudsman