Summary: The Council significantly delayed carrying out an Education, Health and Care Needs Assessment for Ms X’s child, Z. Its communication and complaint handling was also delayed. These faults caused Ms X and Z uncertainty, frustration and distress. In recognition of the injustice caused, the Council has agreed to pay Ms X £700. As service improvements are already underway at this Council, we have not repeated the recommendations again here.

The complaint

1. Ms X complains the Council significantly delayed carrying out an Education, Health and Care (EHC) Needs Assessment for her child, Z. Ms X also complained the Council failed to communicate with her properly and significantly delayed investigating her complaint.
2. Ms X says as a result of the Council’s actions, Z spent longer than necessary at a mainstream school that was not suitable for them and this caused both her and Z distress.

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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. 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)
5. 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

6. I have not investigated the Council’s decision of 2022 not to carry out an EHC Needs Assessment for Z. This is because we are prevented from considering this complaint, as Ms X appealed this matter to the SEND Tribunal. The law around this is explained further in paragraphs 18 to 21 of this decision.
7. I have investigated events beginning from 5 January 2023, which is the date that the Tribunal ordered the Council to carry out an EHC Needs Assessment for Z.
8. The period I am investigating ends on 14 March 2024, when the Council issued the final EHC Plan for Z. By this date, the Council had complied with the Tribunal’s order and so my complaint investigation ends.

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How I considered this complaint

9. I considered the information provided by Ms X and the Council.
10. I considered the relevant law and guidance as set out below.
11. I considered our Guidance on Remedies.
12. I considered all comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

Education Health and Care Plans

13. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.

Education, Health and Care Needs Assessments

14. To decide whether a child or young person needs an EHC Plan, councils will carry out an EHC Needs Assessment.
15. 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:

• where a council receives a request for an EHC needs assessment it must decide within six weeks whether to agree to the assessment;
• a council should decide if it will issue an EHC Plan within 16 weeks of the request for an assessment; and
• the whole process from the point an assessment is requested until a final EHC Plan is issued must take no more than 20 weeks.

16. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes but is not limited to: 
• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an Educational Psychologist. 
17. Those consulted have a maximum of six weeks to provide the advice. 

SEND Tribunal

18. 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.
19. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right only arises once a decision not to assess, issue or amend a Plan has been made and sent to the parent or a final EHC Plan has been issued.
20. Once the Tribunal issues a decision, the council must carry out the order within a fixed period (SEND Regulation 44). If the Tribunal has instructed the council to carry out an EHC Needs Assessment, it must:
• Carry out an assessment within two weeks of the order; and
• Issue the finalised EHC Plan within fourteen weeks of the order.
21. 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)

What happened

Background

22. In 2022 Ms X asked the Council to carry out an EHC Needs Assessment for Z as they had a neurodevelopmental condition and Ms X was concerned Z’s school was not meeting their needs.
23. The Council declined to carry out the assessment. Ms X appealed this decision to the SEND Tribunal and on 5 January 2023, the Tribunal ordered the Council to assess Z for an EHC Plan.
24. At the time this complaint period began in January 2023, Z was attending a mainstream school.

Key events

25. The Council began the process of assessing Z and sought an Educational Psychologist report, on 23 January 2023. This was one working day later than the two weeks given in law to start assessing following a Tribunal order.
26. The Educational Psychologist sent their advice to the Council on 8 March. They noted that Ms X felt Z could still attend a mainstream setting but with SEN support in place.
27. By 13 April 2023 it had been fourteen weeks since the Tribunal ordered the Council to assess Z. The Council was due to have issued Z’s final EHC Plan by this date but no Plan had yet been issued.
28. Ms X complained to the Council on 27 June 2023 about the delay. She said Z needed an EHC Plan urgently, as they were still struggling in their mainstream school without the right support and had been on several fixed-term exclusions.
29. Ms X chased the Council for a response but it did not respond for nine months. When it responded at stage one, in March 2024, it upheld her complaint, apologised and said the EHC Plan had by then been issued.
30. The Council issued a final EHC Plan for Z on 14 March 2024. This named a specialist school and several forms of support in Section F. Ms X appealed the Plan to the SEND Tribunal because:
• she disagreed with the specialist placement named in Section I;
• said Z’s needs were not all reflected in Section B; and
• did not agree with the provision listed in Section F.
31. Ms X asked for her complaint to be investigated at stage two of the Council’s complaints procedure in late March 2024. The Council responded at stage two nearly three months later, in June 2024. It upheld the same fault again, apologised and signposted Ms X to the Ombudsman if she was unhappy with its response.
32. Ms X complained to the Ombudsman. She said the Council’s apology was insufficient, as the delays in the process had led to worsening mental health for Z, caused Z to experience poor educational outcomes and caused them both distress. Ms X said she wanted a financial remedy and evidence that the Council had taken action to improve its services.

Recent service improvements at this Council

33. In March 2023, Ofsted and the Care Quality Commission (CQC) assessed that Kent County Council had failed to make sufficient progress across nine areas with regard to its SEND services and issued an improvement notice. Between then and August 2024, Ofsted and the CQC have been involved in improving the provision of SEND services at this Council. The improvement notice was lifted on 6 August 2024.
34. Regarding delays in complaints handling, the Ombudsman upheld fault in several other cases covering a similar timeframe this year. In response to these cases, the Council agreed to service improvements and sent us details of the action it took to reduce complaint handling times. This included employing a team of complaint investigators working solely on the backlog.

My findings

Delayed EHC Needs Assessment

35. The Council had fourteen weeks to issue Z’s EHC Plan following the Tribunal’s order. Instead it took more than fourteen months. This significant delay was fault by the Council and this in turn, delayed Ms X’s right of appeal to the SEND Tribunal.
36. We cannot say, even on balance, what education Z would have received if not for the Council’s delay in issuing the Plan, as once the Plan was issued, Ms X did not agree with the contents and appealed this to the SEND Tribunal. Ms X said the Council’s delays have impacted on Z’s development and education. If she wishes, she can ask the SEND Tribunal to consider whether Z requires additional provision as part of her appeal to the SEND Tribunal.
37. The Council’s fault caused Z and Ms X a period of distress and frustration. Z and Ms X have also been caused uncertainty, about whether Z could have been in an education placement sooner that better met their needs. This is an injustice to them both.

Poor communication and complaint handling

38. The Council has accepted its communication with Ms X has been poor and that it significantly delayed responding to her complaint. It said this was due to a backlog of complaints it had at that time.
39. The Council’s poor communication and poor complaint handling was fault. This caused Ms X and Z further frustration at an already challenging time.

Service improvements

40. The faults set out in paragraphs 35 and 38 occurred in the period before the service improvements noted in paragraphs 33 and 34 had taken place. I am satisfied those improvements are sufficient to prevent similar faults happening in future, so I have not made further recommendations here.

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Agreed action

41. Within one month of the date of the final decision, the Council has agreed to:
1. Pay Ms X £400 to reflect the distress, frustration and uncertainty she and Z were caused by the Council’s significant delay in finalising Z’s EHC Plan; and
2. Pay Ms X £300 to reflect the long period of frustration and distress experienced by her and Z because of the Council’s lack of communication and delayed complaint handling.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to pay a financial remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman