Summary: Mr X complained the Council delayed completing his daughter, Y’s, Education, Health and Care needs assessment. He complained the Council denied the opportunity to meet him twice and issued the plan without his agreement. Mr X said Y did not have the provision she needed and the situation distressed the family. There was fault in the way the Council delayed issuing Y’s plan, did not agree to meet with him and did not follow its complaint process. This distressed Mr X, frustrated his appeal rights to the Tribunal and Y missed plan provision. Mr X was also put to time and trouble to complain. The Council has agreed to apologise, make a financial payment and provide guidance to its staff.

The complaint

1. Mr X complained the Council delayed completing his daughter, Y’s, Education, Health and Care needs assessment. He complained the Council denied the opportunity to meet him twice and issued the plan without his agreement. Mr X said Y did not have the provision she needed and the situation distressed the family.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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.

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How I considered this complaint

5. I read Mr X’s complaint and spoke to him about it on the phone.
6. I considered information provided by Mr X and the Council.
7. Mr X 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

Background information

8. 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. 
9. 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 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.

10. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified; and
• an amendment to these elements of an EHC Plan.

11. The courts have established that if someone has appealed to the 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)
12. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
13. The Special Educational Needs and Disability regulations 2014 section 13 states “when a local authority sends a draft plan to a child's parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to require the local authority to arrange a meeting between them and an officer of the local authority at which the draft plan can be discussed”.
14. The Council complaint procedure allows the Council 10 working days to complete a stage one process and 20 working days to complete stage two.

What happened

15. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
16. Y has complex additional needs. Mr X applied for an EHC Plan for Y in March 2023.
17. The Council confirmed it would assess y for an EHC Plan in May 2023. The Council asked an Educational Psychologist (EP), Speech and Language Therapist (SALT) and Occupational Therapist (OT) for an assessment report of Y’s needs.
18. The Council received the EP report in June 2023.
19. The Council received the OT report in August 2023.
20. The Council issued a draft EHC Plan. In August 2023, Mr X asked the Council to meet with him to discuss the plan. The Council declined and asked for any concerns in writing. Mr X provided his comments to the Council.
21. The Council received the SALT report in September 2023.
22. The Council issued another draft EHC Plan. In November 2023, Mr X said he had not had a response from the Council. He asked for a meeting to discuss his concerns. Mr X raised concerns about the delays in the EHC Plan process.
23. The Council issued Y’s final EHC Plan in November 2023. Mr X expressed his frustration about the Council issuing the plan and said it was of poor quality.
24. Mr X complained to the Council at the end of November 2023. He said the EHC Plan took longer than the statutory timeframe. He also complained the Council refused to meet with him to discuss the plan. Mr X said this delayed the provision in the plan.
25. The Council responded to the complaint in December 2023. The Council confirmed it delayed issuing the plan by three months. It explained this was due to working with Mr X on the content of the plan, but accepted the delay and apologised. The Council said it was happy to meet to discuss the plan.
26. Mr X asked the Council to escalate the complaint to stage two. He said the complaint response did not offer any meaningful resolution to benefit Y.
27. Mr X appealed to the Tribunal in December 2023.
28. Mr X and the Council continued to discuss the EHC Plan, confirming a place at a school for Y and considering amendments to the plan.
29. Following a meeting with the Mr X, in March 2023 the Council agreed to amend its stage one response. In the amended response, the Council said it would offer Mr X £450 for missed provision for Y and £150 to Mr X for distress. Mr X did not accept this offer and said he did not have a breakdown of what it was for.
30. The Council provided an amended stage one complaint response in June 2024. The response repeated the Council delayed issuing the EHC Plan by three months. The Council confirmed it provided funding to Y’s school to meet her needs from the date it should have issued the plan.
31. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to provide the provision in the plan and make a financial payment.
32. In response to my enquiries the Council stated the financial offer of £450 was for missed provision. It said there was not specified or quantified provision in the plan but wanted to accept its fault and provide a payment for Mr X to use for provision if he wanted. The Council stated it provided funding to the school to ensure Y had the support she needed. The Council stated it had no statutory duty to meet with Mr X to discuss the draft plan.

My findings

EHC Plan timescales

33. Following Mr X’s application for a needs assessment, the Council should have decided if it would assess within six weeks. It decided to assess at the start of May 2023, five weeks after the application. The Council was not at fault.
34. After it decided to assess, it had until August 2023 to issue a final plan. It did not issue a plan until November 2023, a three-month delay. The Council cited different reasons for the delay including delays getting reports from other professionals, negotiations with Mr X, school holiday related delays and staff changes.
35. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. 
36. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
37. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
38. The Council decided it would offer £450 for missed provision. Its explanation for this amount was Y received support in school during the three-month delay, but it wanted to provide a remedy for Mr X to fund any provision needed for Y. The Council said it issued the plan in November 2023 and provision could still be delivered before the end of the school term. I am satisfied the amount offered is sufficient for any missed provision.
39. The Council offered Mr X £150 for his distress during this delay. The Council accepted Mr X was distressed by this fault, but it did not acknowledge the delay frustrated his right of appeal to the Tribunal.
40. The Council stated it did not have a duty to meet Mr X to discuss the draft EHC Plan. The regulations referenced in paragraph 13 sets out the Council’s requirement to meet with people if they ask for it. The Council did not do this. This is fault and distressed Mr X.
41. Mr X is unhappy the Council issued the plan without his agreement. If a Council does not agree to the wanted changes, it can still issue a final plan. This gives appeal rights to the Tribunal, who can decide on changes to the plan if necessary. The Council was not at fault.

Complaint handling

42. The Council’s complaint policy states the Council should provide a stage one response within ten working days. It says the stage two response should take 20 working days. The Council issued a stage one response within the ten working days. However, it then issued an amended stage one response six months later. The Council has not followed its complaint procedure. This is fault. Mr X was put to time and trouble to complain.

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Agreed action

43. To remedy the outstanding injustice caused to Mr X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mr X for the fault identified in this case. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mr X the £450 it offered as an acknowledgement of the missed provision for Y. This money should be used for Y’s benefit.
• Pay Mr X £200 as an acknowledgement of the time and trouble he has spent pursuing this complaint.
• Pay Mr X £300 to acknowledge the distress caused and delaying his appeal rights to the Tribunal.
• Remind relevant staff of the importance of effective complaint handling.
• Remind relevant staff of the Council’s duties and responsibilities regarding EHC Plan’s and needs assessments.
44. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

45. I have completed my investigation. I have found fault by the Council, which caused injustice to Mr X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman