Summary: We found fault by the Council on Mr Y’s complaint about it failing to follow statutory timescales for issuing his son’s final Education, Health and Care plan. It missed the timescale by 13 weeks. There were communication failures with Mr Y and a failure to properly deal with his complaint according to its complaints procedure. This caused avoidable distress as his son missed provision, and Mr Y suffered frustration, uncertainty, and lost opportunity. The Council agreed to send him a written apology for the failings, pay £700 for lost provision, £500 for avoidable distress, and act to ensure the failings cannot be repeated on future cases.

The complaint

1. Mr Y complains about the way the Council dealt with his son, Z, who has special educational needs, and it failing to:
1. follow statutory timescales as it took too long to issue his final Education, Health and Care plan;
2. properly and promptly communicate with him; and
3. properly follow the formal complaints procedure.
2. As a result, his son was without suitable educational provision for longer than was necessary. As he attended part time without a suitable plan, Mr Y had to change his working hours to be with him which caused financial loss, stress, and anxiety.

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The Ombudsman’s role and powers

3. 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)
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. When considering complaints, we make findings based on the balance of probabilities. This means we look at the available relevant evidence and decide what was more likely to have happened.
7. 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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How I considered this complaint

8. I considered evidence provided by Mr Y, the notes I made of our telephone conversation, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mr Y and the Council..

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What I found

Law and guidance

9. 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 First-tier Tribunal (the tribunal) or the council can do this. 

10. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014 (the Regulations) which say 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent, or young person, information about their right to appeal to the tribunal.
• 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 issue an EHC plan, the whole process from the point when an assessment was requested, until the final EHC plan was issued, must take no more than 20 weeks (unless certain specific circumstances apply).

11. Where an order of the tribunal requires the Council to make an EHC needs assessment, it shall send out the final EHC plan within 14 weeks of its order when it decides it is necessary for special education provision to be made for the child.
12. The Code states there are ‘exceptional circumstances’ where it may not be reasonable to expect councils to comply with the 20 week time limit. This would include: appointments missed by the child; the child is absent from the area for a period of at least 4 weeks; exceptional personal circumstances affecting the child or parents; the closure of the educational institution for at least four weeks which may delay the submission of information from the school.

What happened

13. In May 2023, the school where Z attended applied to the Council for an EHC needs assessment. The Council had six weeks to decide whether it would carry one out. Hearing nothing, Mr Y sent a formal complaint. The Council said it issued a decision on 16 June but, Mr Y said he had not received it. The letter told him it refused to do an EHC needs assessment for Z.
14. Mr Y appealed this decision to the tribunal in October, and later the same month, the Council accepted it would now do an EHC needs assessment. This decision meant the appeal did not need to go ahead. The tribunal issued the ‘Notice date’ on 24 October. Z was now in Year 5 at school.
15. In November, Mr Y asked the Council to get advice from a Consultant Paediatrician, a clinical psychologist, and from a Speech and Language Therapist (SALT) which it did.
16. In December, Mr Y sent a stage 1 complaint about the Council not meeting its statutory time scales following its decision to carry out the EHC needs assessment. He noted the Council had to issue a final EHC plan within 14 weeks of the Notice date (30 January 2024) or alternatively, tell him within 10 weeks (2 January) of the Notice date why it was not necessary to issue one.
17. The draft EHC plan was sent to him on 7 March at which point the Council received a further request from Mr Y to contact the Consultant Paediatrician again as well as another doctor. The Council decided it had finished its information gathering stage of the assessment and already had a complaint from him about delay in the statutory process. It explained it was not its role to check with professionals to see if they agreed with the draft EHC plan or reports obtained. It was satisfied it obtained the mandatory evidence required of it by the Regulations.
18. When he complained, the Council responded in April saying its service was under high demand and accepted it had not met the statutory deadline. The Council apologised for the delay and explained it was recruiting extra staff.
19. Three weeks after issuing the final EHC plan on 30 April, the Council reached its decision about the personal budget request for SALT provision. The SALT provision could be funded through a personal budget. Based on the Children’s SALT manager, the Council agreed £660 for 12 hours a year provision. It could not find evidence it explained how it calculated this to Mr Y for which it apologised.
20. In May, he also asked for his complaint to go to the second stage of its complaints procedure and asked how the Council calculated the figure of £660. Towards the end of June, the Council apologised for the delay in responding which was due to staff absences and work load. It had instructed external investigating and reviewing officers to deal with this complaint.
21. In July, he chased the Council about the SALT personal budget figure and set out what he thought it would cost for 35 hours a year.
22. The following month, the Council agreed to increase the funding to more than £2,000 for SALT provision.
23. The Council issued its stage 2 response in October and the recommendations it agreed to carry out as a result of that investigation.
24. Mr Y also complained about the Council’s failure to respond to his communication, particularly requests of copies of professional advice sought, for example.
25. The Council explained the Special Educational Needs plan co-ordinator no longer worked for it, so it had difficulty responding to our enquiries about it. It also said the advice it received as part of the EHC needs assessment was disclosed with the draft EHC plan sent to Mr Y.

My findings

Complaint a): statutory timescales

26. I found the following on this complaint:
1. The Council had 14 weeks from the Notice date to make a final EHC plan for Z. This meant it was due on 30 January 2024. It was issued 30 April. This 13-week delay was fault.
2. While I appreciate the Council sought advice from various professionals, any delays receiving information back from them would not amount to an exceptional circumstance for exceeding the statutory time limit.
3. The Council explained the delay happened because of high demand, which it said was a national problem.
4. I am satisfied the fault caused avoidable injustice. Z missed a half term’s provision which was set out in his EHC plan. The provision Z missed, for example, included support, advice and provision from the SALT and the occupational therapist, as well as a structured skills programme, and a literacy intervention policy. I am satisfied Mr Y was caused distress in the form of stress and frustration while he pursued the Council about it.

Complaint b): communication

27. I found the following on this complaint:
1. The Council accepted, in its Stage 1 response, there had been a failure to explain the reasons for the delay with issuing the EHC plan. This failure was fault.
2. The Council also accepted it could not find any correspondence sent to Mr Y which explained how it had reached its calculation about SALT provision in response to his request for a Personal Budget for it. The failure to show it had explained its calculation to Mr Y was fault.
3. The Council could not provide evidence in response to the allegation of it failing to respond to Mr Y’s request for copies of the professional advice received. This was because the relevant officer involved had left its employment. There was a failure to ensure records were kept by the officer, so the Council had evidence of contact with Mr Y about it. I am not satisfied this fault caused him a significant injustice. This was because the advice was sent to him anyway with the draft EHC plan.

Complaint c): complaint process

28. The Council’s complaints procedure is as follows:

• Stage 1: The relevant service will take all reasonable steps to resolve the complaint and aimed to respond within 10 working days. If this was not possible, an update would be given within 10 working days with an estimate of the likely timescale for a full response.
• Stage 2: This was for when a complainant can reasonably show one of the following: it failed to consider relevant information at stage 1; failed to follow procedures in dealing with the complaint; incorrectly interpreted Council policy; the response failed to fully answer the complaint. It will be done either by a senior officer, the Customer Relations Team, or, where appropriate, an independent investigator if unusually complex or there is a need for an extra level of independence. It usually responds to a Stage 2 complaint within 30 days but if this is not possible, would say what the likely response time would be.

29. I found the following on this complaint:
1. Mr Y first sent a complaint in June 2023 (complaint 1). The Council responded the following day explaining it issued a decision letter on his complaint about it not deciding whether to carry out an EHC needs assessment within six weeks. There was no fault because the Council responded promptly to his complaint.
2. Mr Y sent his second complaint (complaint 2) in December when it became clear to him that the Council would not keep to the statutory time limits. The response was sent to him in April 2024.
3. I found fault with complaint 2. Under its complaints procedure, he should have received a Stage 1 response within 10 working days, or an estimate of when it would be sent if this was not possible. The evidence showed he was not sent a response within 10 working days.
4. Mr Y asked for complaint 2 to go to Stage 2 in early May 2024. Towards the end of June, the Council apologised for the delay in dealing with his request. This was due to staff absences and workloads. He was told it would go to an external investigator. It asked him to clarify the outcomes he wanted. Mr Y replied shortly afterwards. The following day the Council acknowledged his comments.
5. In July, the independent investigator met Mr Y to go through his complaint.
6. The Stage 2 response was eventually sent to him on 25 October. Under its complaints procedure, the Council should have sent him it within 30 working days (about six weeks) of his request or explain when it would be sent if this was not possible. The independent officer’s investigation report noted there were delays with her receiving instructions to do her investigation. This was due to the Council finding an independent investigator, her own lack of capacity, and the complexity of the complaint.
7. I found fault on the Council’s handling of his Stage 2 complaint. It took about 14 weeks longer than it should have done. Part of this delay was due to it finding an independent investigator but there was no evidence showing what steps the Council took to find one and when it started to do so.
8. I am satisfied the fault caused Mr Y an injustice. It caused him distress in the form of uncertainty about what was happening, the lost opportunity to have it done sooner, as well as the frustration this caused him.

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Action

30. I took account of: our guidance on remedies; the apologies the Council already gave Mr Y for missing statutory deadlines; it failing to explain calculations reached on the SALT personal budget; the findings of the Stage 2 independent investigator; the Stage 2 recommendations the Council accepted it would carry out; the actions the Council said it took as a result of Mr Y’s complaint.
31. When calculating the symbolic payment for the lost provision, I also took account of the missed provision set out in his EHC plan that was delayed by 13 weeks along with the education provision Z received during this time by the school.
32. The Council agreed to carry out the following actions within four weeks of the final decision on this complaint:
1. Send a written apology for the injustice caused by: it failing to explain how it calculated the SALT provision; the delays with the complaints procedure.
2. Pay £700 to Mr Y for Z’s lost provision covering half a school term.
3. Pay £500 to Mr Y for the avoidable distress the fault caused.
4. Confirm what action was taken to ensure the problems with the EHC plan process are not repeated on future cases and whether any further action is necessary.
5. Remind relevant officers of the need to make and retain records of contact with parents/carers about queries about Personal Budget calculations.
6. Review why the complaint procedure was not followed at Stages 1 and 2 and act to ensure the identified failings cannot be repeated on future cases.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I found fault causing injustice on Mrs Y’s complaint against the Council. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman