Summary: Mrs X complained about how the Council assessed her son, Y’s, special educational needs. There was fault in how the Council took too long to issue an Education Health and Care plan for Y and how it communicated with Mrs X. The Council agreed to apologise and pay Mrs X a financial remedy.

The complaint

1. Mrs X complains about how the Council assessed her son, Y’s, special educational needs and how it prepared his education health and care (EHC) between 2022 and 2024. She says the Council:
• took too long to assess Y’s needs and issue his EHC plan;
• did not meet with her as she requested when preparing the plan;
• named an unsuitable school for Y to attend; and
• communicated with her poorly.
2. As a result, she said Y missed out on a significant amount of education and both her, Y and their family’s wellbeing have been impacted. She wants the Council to arrange for Y to attend her preferred school and properly recognise both the education he has missed and the impact on her family.

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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 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
5. 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.
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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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What I have and have not investigated

8. I have not investigated how the Council decided what the contents of Y’s EHC plan should say, or which school he should attend. Mrs X appealed the content of Y’s EHC plan to the SEND Tribunal, so I cannot investigate anything which contributed to the content of the plan. This includes any failure of the Council to meet with Mrs X about the plan.
9. I have investigated the delays in the EHC assessment process and how the Council communicated with Mrs X.

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How I considered this complaint

10. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s response to the complaint; and
• relevant law and guidance.
11. Mrs X and the Council had an opportunity to comment on drafts of my decision. I considered their comments before making a final decision.
12. 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 found

Education health and care plans

13. 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. 
14. 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).
15. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice. 
16. There is a right of appeal to the Tribunal against various decisions about EHC plans, including:
• a decision not to carry out an EHC needs assessment or reassessment; and
• 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.
17. Where, following an appeal about the decision not to carry out an EHC needs assessment, a Council agrees to carry out an assessment and issue an EHC plan, it must issue the final plan within 14 weeks of agreeing to carry out the assessment. (SEND Regulation 45(3A)(b))
18. 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)
19. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
20. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started.

Background

21. Mrs X’s son, Y, has special educational needs and had struggled at school for several years.
22. Mrs X asked the Council to assessed Y’s needs in September 2022. The Council initially decided not to carry out the assessment, so Mrs X appealed this decision.
23. The Council changed its decision and agreed to carry out the assessment in July 2023.
24. However, the Council did not receive educational psychology advice for Y until November 2023, and did not issue a final EHC plan for Y until March 2024.
25. Mrs X was not satisfied with the content of Y’s EHC plan, or the mainstream school the Council decided Y should attend, so she appealed to the SEND Tribunal. She also complained to the Council about flaws in the assessment process and poor communication from the Council from late 2023.
26. In its response to her complaint, the Council accepted it had failed to update Mrs X or respond to her emails between December 2023 and May 2024. It apologised for that poor communication and offered Mss X £100 to recognise the distress this had caused her.

My findings

27. The Council decided to issue an EHC plan for Y, after it agreed to assessment in July 2023. It should have done this within 14 weeks of agreeing to the assessment. This would have been by mid-October 2023. However, it did not issue the final EHC plan until mid-March 2024; around five months late. That delay was fault.
28. Council’s must seek education psychology advice when preparing an EHC plan. Y’s EHC plan says this advice was dated November 2023; after the date the final plan should have been issued. On the balance of probabilities, I am satisfied the delay in obtaining educational psychology advice was a significant cause of the delays with Y’s final EHC plan.
29. I cannot say what would have happened had the Council issued the final EHC plan by October 2023 when it should have done. However, the delay in completing the process caused Mrs X significant frustration and leaves a remaining uncertainty about whether the outcome could have been different.
30. Where delays in an EHC plan have been caused by a shortage of educational psychologists or educational psychology advice, we will typically recommend a symbolic payment of £100 a month for the length of the delay, to recognise that frustration and uncertainty. I am satisfied, in Y’s case, that would be a suitable remedy.
31. The Council has accepted its communication with Mrs X was poor between December 2023 and May 2024, and that this was fault. I am not satisfied the £100 the Council has offered is a suitable remedy. Considering the delay at that point, and the length of the poor communication, I consider a symbolic payment of £200 to appropriate.

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Agreed action

32. Within one month of my final decision the Council will:
• apologise to Mrs X for the frustration and uncertainty caused by the delay in issuing Y’s EHC plan;
• pay Mrs X £500 to recognise that frustration and uncertainty;
• pay Mrs X £200 to recognise the added distress and frustration caused by its poor communication in late 2023 / early 2024. (This includes the £100 the Council has already offered).
33. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
34. The Council should provide us with evidence it has complied with the above actions.
35. I would normally have made further recommendations for how the Council should improve the performance of its special educational needs service. However, the Department for Education issued an improvement notice to the Council covering these issues in January 2024. The Council already has an improvement plan in place covering the same issues which affected Mrs X. I have decided it is not appropriate to make similar recommendations.

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Final decision

36. I have completed my investigation. There was fault in how the Council took too long to issue an EHC plan for Y and how it communicated with Mrs X. The Council agreed to apologise and pay Mrs X a financial remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman