Summary: Mrs X complains the Council missed statutory deadlines when processing her child’s education, health and care plan. The Council has acknowledged there were delays in issuing the final plan and it has agreed to remedy the injustice caused to Mrs X and her child.

The complaint

1. Mrs X, the complainant, complains the Council missed statutory deadlines when assessing her child’s education, health and care needs and issuing the education, health and care Plan.

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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 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)
3. 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)
4. 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.
5. 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)
6. 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

7. I have not investigated Mrs X’s complaints regarding the Council’s decision not to consult a Speech and Language Therapist when assessing Y’s needs and the content of the EHC Plan. Mrs X was provided with her right to appeal. These are matters for the SEND Tribunal and out of the Ombudsman’s jurisdiction.

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How I considered this complaint

8. I considered Mrs X’s complaint and the information she provided.
9. I considered the information I received from the Council in response to my enquiries.
10. Mrs X and the Council had the opportunity to comment on a draft of this decision. I have considered their comments before making this final decision.

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What I found

Relevant law and guidance

11. 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 council can do this.
12. 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. 
• 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 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.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

13. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

14. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  
15. Those consulted have a maximum of six weeks to provide the advice. 
16. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

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What happened

The EHC needs assessment and final plan

17. Mrs X has a child, Y, who was special educational needs. In May 2023, the Council received a request for an education, health and care (EHC) needs assessment for Y. In July 2023, the Council refused the request because it did not consider Y required special educational provision to be made in accordance with an EHC Plan.
18. Following the refusal, the Council received a mediation request. After a conversation with Y’s family, the Council decided to overturn its decision and assess Y’s needs. The Council does not have a record of this conversation, and it does not have a record of the rationale behind the overturned decision. This failure to keep records is fault and it has resulted in Mrs X feeling frustrated with the Council because she does not know why the Council changed its mind. It also caused uncertainty that the decision to assess Y could have been made sooner and avoided the unnecessary time and trouble in starting the mediation process. This injustice warrants a remedy.
19. An assessment of Y by the Educational Psychologist (EP) was completed on 21 September 2023 and the report was completed on 10 November 2023.
20. On 26 April 2024, the Council issued a final EHC Plan for Y. Mrs X was unhappy with the contents of the final EHC Plan and requested mediation. Following mediation, a further final EHC Plan was issued in August 2024.
21. The Council should have finalised Y’s EHC Plan within 20 weeks of the date of the assessment request. The Council issued Y’s final EHC Plan 29 weeks later than it should have and this delay is fault.
22. The Council has said the delays were due to securing advice from an EP but the EP’s report was completed on 10 November 2023 and the Council did not finalise Y’s EHC Plan until 26 April 2024. Therefore, I do not consider this was the reason for the delay.
23. The delay has caused avoidable stress to Mrs X and to Y and it delayed their appeal rights. This injustice warrants a remedy.

The Council’s complaints procedure

24. Mrs X submitted her complaint to the Council in April 2024 but the Council did not register it as a formal complaint. It responded to the complaint as an ‘Early Resolution’. Although there was an action plan in the Council’s response, Mrs X did not feel the Council took her concerns seriously and after receiving the Council’s response, those concerns remained.
25. The Ombudsman requested the Council investigate Mrs X’s complaint under Stage 2 of its complaint process.
26. The Council’s investigation found there was fault because the EHC Plan process took longer than it should have, and it offered Mrs X a financial remedy of £500. However, the Council maintained Mrs X’s complaint was dealt with appropriately using ‘Early Resolution’.
27. I am of the view the Council’s decision not to register Mrs X’s concerns as a complaint is fault. This is based on the Council’s Stage 2 investigation finding there was merit in the concerns raised and it found fault with regards to the EHC Plan process timescales. In addition to this, the Stage 2 investigation found no evidence of the actions the Council committed to taking in the ‘Early Resolution’ response being actioned.
28. The Council’s failure to investigate Mrs X’s concerns from the outset has resulted in avoidable time and trouble. It has also caused Mrs X to feel the Council was minimising her concerns about her child when the evidence shows the Council was at fault and her concerns were valid. This injustice warrants a remedy.

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Agreed action

29. To remedy the injustice caused by the fault identified above, the Council has agreed that within four weeks of this decision it will:
• Apologise to Mrs X for the faults identified
• Pay Mrs X £350 for the avoidable distress caused by the failure to record its reasons for overturning its decision regarding Y’s EHC needs assessment and also the frustration caused by the Council not investigating Mrs X’s complaint in the first instance.
• Pay Mrs X £600 for the avoidable distress caused by the delay in finalising Y’s EHC Plan.
• Pay Mrs X £150 for the avoidable time and trouble.
30. The Council will provide us with evidence it has complied with the above actions.

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Final decision

31. The Council is at fault, and it has agreed to remedy the injustice caused. Therefore, I have completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman