Summary: Miss X complained about the Council’s delays in the Education and Health Care Plan assessment process and about the lack of provision for her daughter after the Council issued the final EHC Plan. We found the Council was at fault for the delay in finalising the Plan withing the statutory timescales and the failure to ensure S received her therapies after February 2024. The Council agreed to apologise and pay Miss X a remedy to address the injustice its actions caused her and S.

The complaint

1. Miss X complains about the Councils failure to:
• adhere to statutory timescales for EHC Plan assessment; and
• adhere to the statutory timescales for issuing an amended EHC Plan following the SEND Tribunal’s Order in February 2024; and
• secure the provision from section F of her daughter’s EHC Plan after the SEND Tribunal in February 2024.
2. Miss X says this caused her and her daughter avoidable distress and meant that her daughter missed out on crucial support she needed.
3. Miss X would like the Council to ensure that her daughter’s school provides all the therapies from section F of her plan to support her learning.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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)
9. 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.
10. 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).
11. 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.
12. 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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How I considered this complaint

13. I considered evidence provided by Miss X and Council as well as relevant law, policy and guidance.
14. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

15. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to local authorities about how they provide support for children and young people with SEN.
16. The majority of children with SEN have those needs met by schools and early years settings. Those bodies have a responsibility to identify children with SEN, sometimes with the help of outside specialists.
17. If a school or parent has concerns that, despite a school’s SEN provision, a child is not making the expected progress, they can ask a local authority to consider whether it needs to carry out an assessment of EHC needs.
18. An EHC plan is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
19. The Council must respond to all requests for an EHC plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHC plan must take no more than 20 weeks.
20. Where there are exceptional circumstances, it may not be possible for the Council to meet the timescales. The Council should tell the child’s parent or the young person of the reasons for any delays.
21. Councils must seek advice from the child’s parent, their school, healthcare professionals involved, an educational psychologist, and from anyone else the parent has reasonably requested (paragraph 9.49)
22. The Regulations set out the minimum information and advice the Council should seek in an EHC assessment. A parent or young person can ask the Council to seek advice from anyone within health, education or social care and, provided it is a reasonable request, the Council must do so. It is more likely to be reasonable if that professional is already involved with the child.
23. The Regulations say the advice should be provided within six weeks, which is also the timescale for a local authority deciding whether it needs to draw up a plan.
24. The Code says a council:
• must ensure the child’s parents are fully included from the start and consulted throughout the production of the plan;
• should carry out timely, well informed assessments.
25. The Council can only issue an EHC plan after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a plan or not.
26. If the Council decides to issue a plan it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request but it should be able to explain why the EHC plan meets the needs of the child.
27. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHC plan as these are appealable to SEND Tribunal.
28. The Ombudsman can look at any delay in the assessment and creation of an EHC plan as well as any failure by the Council to deliver the provision within an EHC plan.
29. Once the Council issues the final EHC plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.

EHC Plan provision

30. The Council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
31. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

What happened

32. In mid-January 2023 Miss X asked the Council to assess her daughter for an EHC Plan.
33. Miss X complained to the Council about the delay in the EHC Plan assessment process in early March 2023. She said that she had not received the Council response to her request for a Needs Assessment. The Council acknowledged her complaint the following day.
34. Miss X made another complaint about the delays in early May 2023. She said it had been 16 weeks since her original request and she was still not sure what was going to happen. The Council responded within seven days and said the delays were caused by the shortage of Educational Psychologist but the date for S’s assessment was set and the Council would have the report shortly.
35. Within two weeks the Council received the Educational Psychologist’s report.
36. The Council issued S’s EHC Plan in late June 2023.
37. The following day Mrs X contacted the Council and said that S’s school told her it could not meet S’s needs.
38. In early July 2023 Mrs X complained to the Council and said that S’s school was not providing the provision from EHC Plan. She told the Council that it had to step in and that S’s school said it would not be able to make all the provisions available to her when the Plan was still a draft. Miss X also said S’s school asked for some of the provision to be removed from section F of the EHC Plan as it could not deliver it. The Council acknowledged the complaint within a couple of days. Around this time Miss X also appealed the section I of the EHC Plan to the SEND Tribunal.
39. At the end of the month, the Council issued its response to Miss X’s complaint. It didn’t address Miss X’s claim the school was not delivering provision. It said the school could meet need and that the Council assigned appropriate funding to the school to be able to deliver S’s provision. The Council also said that it had referred S for Occupational Therapy (OT) and Speech and Language Therapy (SALT) assessments to further support the school. The Council told Miss X that it was not aware of S’s school request to remove provision from her EHC Plan, but it would work with the school to clarify this.
40. In February 2024 the SEND Tribunal issued its decision and said that section I should name the school the Council had previously named in S’s EHC Plan.
41. In mid- March 2024 Miss X complained to the Council again and said that S’s school was not delivering the provision from S’s EHC Plan.
42. The Council wrote to Miss X in late May 2024 to agree her statement of complaint.
43. In early June Miss X told the Council her complaint was about delay in issuing the EHC Plan, the content of the EHC Plan and the EHC Plan not being delivered.
44. The Council issued its final response to Miss X’s complaint in early August 2024. It accepted that:
• the school was not delivering some of the provision from S’s EHC Plan and the communication with Miss X was poor;
• it was inadequately monitoring the delivery of S’s provision;
• it made errors and there was a delay in the EHC assessment process which contributed to issues with delivering S’s provision;
• school was struggling to deliver all the provision.
45. The Council apologised and offered to pay £500 to Miss X for the distress the delays caused to Miss X.
46. Miss X was not happy with the Council’s response and asked the Ombudsman to investigate.

Analysis

EHC Plan assessment

47. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
48. Miss X asked for an EHC assessment in mid-January 2023. She contacted the Council again in May 2023, as she had not heard anything back about her request. The Council should have decided if it would carry out an assessment and issued a decision letter within six weeks of her request. It did not, and this is fault.
49. The Council also failed to complete the process and issue a final EHC plan within 20 weeks from the date of Miss X’s request in mid-January 2023. It should have issued S’s final plan around early June 2023. The final EHC plan was not available until late June 2023. This was a delay of three weeks which was fault. It had an adverse impact on Miss X because it delayed her right of appeal to the SEND Tribunal and caused avoidable distress and time and trouble chasing officers up. It also meant there was a loss of SEN provision for S because she could have received the tailored provision on an EHC plan yet to be finalised.

EHC Plan following the SEND Tribunal’s Order in February 2024

50. Miss X disagreed with the Plan the Council issued in June 2023 and she appealed it to the SEND Tribunal.
51. The Tribunal issued its order in late February 2024. The Council was due to issue an amended final EHC Plan within five weeks form the hearing.
52. The Council issued the final EHC Plan in late June 2024. This was 17 weeks after the SEND Tribunal’s decision, and it was fault. It had an adverse impact on Miss X because it delayed her right of appeal to the SEND Tribunal and caused avoidable distress and time and trouble chasing officers up.
53. The Council offered to pay Miss X £500 to recognise the uncertainty and the delay the Council’s actions caused her. We consider this is a suitable remedy for the frustration the delay caused Miss X.

Section F provision after the SEND Tribunal in February 2024

54. In August the Council responded to Miss X’s complaint and accepted that S’s school struggled with delivering all of the provision from section F of her EHC Plan following February 2024 SEND Tribunal decision.
55. Additionally, the Council accepted it was at fault for S missing out on SALT and OT provision between February 2024 and January 2025. It offered to pay £2400 for the three terms of SALT and OT provision that S missed (£1200 for each of the therapies). The Council explained that it arrived at that amount considering the amount of SALT and OT that S should have received in each term.
56. We consider the Council’s remedy is suitable and adequately remedies the loss of SALT and OT provision S experienced.
57. Miss X said that S missed out on other aspects of the provision from her section F because the school was unsuitable and could not provide all the aspects of S’s EHC Plan.
58. We consider the Council is at fault for not ensuring that after February 2024 S received all aspects of the provision from the section F of her Plan. By its own admission the Council knew S’s school was struggling. This does not mean the school is unsuitable, but that the school and the Council needed to agree what action the school would take to ensure that it can implement all the provision from section F of the Plan.
59. This caused Miss X available frustration and meant that S missed out on crucial support when in school.

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Action

60. Within one month of the date of the final decision statement, the Council will:
• apologise to Miss X and S for its failure to finalise S’s EHC Plan in a timely manner and its failure to endure she received all the provision from section F of her Plan between February 2024 and January 2025 and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• pay Miss X on behalf of S £1200 to recognise the missed OT provision between February 2024 and January 2025;
• pay Miss X on behalf of S £1200 to recognise the missed SALT provision between February 2024 and January 2025;
• pay Miss X £500 to recognise the delay in finalising S’s EHC Plan and the distress and frustration that it caused her;
• pay Miss X £600 to recognise the provision from section F of the EHC Plan that S missed after February 2024; and
• remind its staff about the importance of finalising EHC Plans withing the statutory timelines.
61. The Council should provide us with evidence it has complied with the above actions.

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Decision

62. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman