Summary: Mrs X complained the Council delayed assessing her child’s education, health and care (EHC) needs, delayed issuing his EHC Plan and it failed to respond to her complaints. The Council is at fault. The identified faults caused Mrs X avoidable distress, uncertainty, delayed her appeal rights and unnecessary time and trouble. The Council has agreed to remedy the injustice by apologising and providing Mrs X with remedy payments to acknowledge the avoidable distress.

The complaint

1. Mrs X complains the Council delayed in:
• Assessing her child, Y’s, education, health and care (EHC) needs;
• Issuing Y’s final EHC Plan;
• Responding to her complaint
2. Mrs X says Y has not received a full-time education for a significant amount of time and the Council’s actions have caused avoidable distress.

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 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)
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 events that occurred after 28 February 2024. 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)
8. 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.
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
10. 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.
11. Therefore, I have investigated matters that occurred from January 2023 to February 2024.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs 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

Relevant law and guidance

Education, health and care (EHC) Plans

14. 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. 
15. 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. Parents must consider mediation before deciding to appeal. An appeal right is only engaged 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.

Timescales and process for EHC assessment with mediation

16. Regulations 42 and 44 of the Special Educational Needs and Disability (SEND) Regulations 2014 sets out the process for carrying out EHC assessments and producing EHC Plans after mediation.
17. It says if the parties have agreed that the Council will carry out an EHC needs assessment: within two weeks the Council must tell the parent that it is starting it. It must then either let the parent know the Council has decided not to issue an EHC Plan within 10 weeks, or send a finalised EHC Plan within 14 weeks of the mediation agreement. The Council officer attending the mediation should be senior enough to be able to make a decision on the Council’s behalf.
18. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
19. The council should consider, with the child’s parent and the parties listed, the range of advice required to enable a full EHC needs assessment to take place. (SEND code of practice: 0 to 25 years, section 9.47).

What happened

Y’s Education, Health and Care Plan

20. Mrs X requested an education, health and care (EHC) assessment for her child, Y. The Council refused to assess Y. Mrs X requested mediation.
21. In January 2023, Y was struggling to attend school and was put on a part-time timetable. The school he was attending had arranged alternative provision for three days a week.
22. In March 2023, at mediation, the Council agreed to assess Y’s needs.
23. An Educational Psychologist (EP) assessed Y’s needs in September 2023.
24. In February 2024, Mrs X complained to the Council because she had not received Y’s final EHC Plan and she was unhappy with the delay. Mrs X also complained about the lack of alternative provision arranged for Y since he had been out of school.
25. The Council’s response to Mrs X’s complaint said the delay was due to a national shortage of EPs. The Council said it recognised the seriousness of the situation in that timescales for the completion of EHC needs assessments are statutory. It said it had plans to increase its use of locum EPs to meet demand.
26. In response to Mrs X’s complaint about alternative education, the Council said it was down to the school to organise and source the alternative provision and then request the funds back from the Council because the school will not be in receipt of funding to enable them to support Y because his EHC Plan has not been finalised yet.
27. Mrs X advised the Council that it owed Y a Section 19 duty to provide him with alternative education from January 2023. Mrs X reminded the Council that Y was not receiving a full-time education.
28. Y’s final EHC Plan was issued on 28 February 2024.
29. Mrs X brought her complaint to the Ombudsman on 10 August 2024. She said that Y had been out of education for 19 months and she had not received a response to her Stage 2 complaint.

Complaint handling

30. On 8 Feb 2024, the Council acknowledged Mrs X’s complaint and advised her it aimed to respond within 20 working days. It said it would contact her should it need longer to respond.
31. On 7 March 2024, Mrs X contacted the Council to chase up a response to her complaint. The Council said it was under the impression a council officer had contacted her on 19 February 2024 and it was discussed that the plan is progressing and that Mrs X was happy with this.
32. Mrs X told the Council she did receive a telephone call from the Council and she was told the Council were going to issue Y’s final EHC Plan and name the school he was struggling to attend for the last 18 months. Mrs X said the telephone call did not address her complaint about the delay in issuing Y’s final EHC Plan so she would like a formal response to her complaint.
33. On 22 March 2024, the Council responded to Mrs X’s complaint. On the same day, Mrs X requested her complaint be escalated. On 26 March 2024, the Council acknowledged Mrs X’s request to escalate her complaint and advised it would respond within 20 working days.
34. On 25 April 2024, Mrs X chased the Council for a response because 20 working days had passed. The Council advised Mrs X there was a delay in responding to complaints because the service was experiencing exceptional levels of work. It apologised and said it would be in touch.
35. Mrs X chased the Council for a response on several occasions from May onwards and she did not receive a response from the Council.
36. As part of my enquiries, I asked the Council about its Stage 2 response to Mrs X’s complaint. It told me it had closed the complaint when it received a notification from the Ombudsman to say it was investigating Mrs X’s complaint.

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Analysis

Y’s EHC Plan

37. We expect Councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
38. The Regulations say local authorities must send a finalised EHC Plan within 14 weeks of the mediation agreement. The Council delayed issuing Y’s EHC Plan by 8 months. This is fault.
39. The Council says the delay was due to a shortage of EPs. I accept there was a delay in Y being assessed by an EP. However, the evidence shows there was a further delay after the EPs involvement that could have been avoided.
40. The delay was fault and caused Mrs X distress, frustration and uncertainty, it also delayed her appeal rights. The Council has apologised to Mrs X but I do not consider this sufficiently remedies the injustice caused to her or Y.
41. I have not made a recommendation for a service improvement as I am aware the Council has taken steps to improve the time it takes to undertake EHC needs assessments.

Alternative education

42. I asked the Council what provision it arranged for Y when he was unable to attend school full-time and it has told me that it was the school’s responsibility to action this. Under Section 19, the Council had a duty to provide Y with an education equivalent to full time. The Council was aware Y was on a part-time timetable from 6 February 2023 and it was at this point it should have considered its Section 19 duty.
43. The Council has provided me with a record from its Inclusion Service who were working with Y’s school from October 2023 to January 2024. In January 2024, the inclusion worker was of the view that the school has and was continuing to offer the correct provision to support Y. I am satisfied the Council considered its Section 19 duty from October 2023.
44. However, I have not seen any evidence of the Council deciding the amount of provision the school arranged for Y prior to October 2023 was an appropriate amount or any evidence of the Council’s consideration or a review as to whether the hours being provided to Y should be increased. This lack of consideration is fault.
45. I am not persuaded the Council met its duty to provide a full-time education from February 2023 to October 2023 or that it properly considered in February 2023 whether Y could manage a full-time education. This is fault. A council can offer less than full-time education if it considers the child cannot cope with full time provision. I have not seen any contemporaneous evidence which shows this was a decision the Council made in this case.
46. The Council said the school was responsible for the alternative provision however the Council should have maintained proper oversight. Its failure to do so caused Mrs X uncertainty if Y received an appropriate amount of education between February 2023 and October 2023.
47. I am unable to make a finding for loss of provision because I cannot say with certainty that had the Council considered its Section 19 duty at the appropriate time it would have decided Y could manage a full-time education.
48. Mrs X had appeal rights to the SEND Tribunal about the provision and placement named in Y’s final EHC Plan dated 28 February 2024. For the reasons set out in paragraphs 4 and 7, I have not investigated what happened after Mrs X’s appeal rights arose.

The Council’s complaint handling

49. On 8 February 2024, the Council advised Mrs X it would respond to her Stage 1 complaint within 20 working days. It responded to her complaint on 22 March 2024. This was a delay of three weeks, and it is fault.
50. The Council said it was under the impression Mrs X was happy with the discussion that was had with a council officer on the telephone about Y’s EHC Plan. However, the Council should have made it explicit that the reason for the call was in response to her complaint and it was attempting to resolve the complaint. During the telephone call, the Council should have asked Mrs X if she felt her points of complaint had been addressed. I do not consider this happened because Mrs X was still waiting for a response to her complaint after the call.
51. Following the Council’s response to her Stage 1 complaint, Mrs X requested her complaint be escalated to Stage 2 of the Council’s complaints procedure. The Council should have responded within 20 working days. Mrs X has not received a response to this complaint. This is not in line with the Council’s complaints procedure and is fault.
52. The fault has caused frustration and Mrs X was put to avoidable time and trouble chasing a response from the Council. This warrants a remedy.

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Agreed Action

53. To remedy the injustice caused by the fault identified above, the Council has agreed that within four weeks of this final decision, it will:
• Apologise in writing to Mrs X for the faults identified above;
• Pay Mrs X £800 to acknowledge the delay in issuing Y’s final EHC Plan;
• Pay Mrs X £450 for the uncertainty caused by failing to consider its Section 19 duty;
• Pay Mrs X £500 for the avoidable distress caused and avoidable time and trouble with regards to way the Council handled her complaints.
54. The Council will provide us with evidence it has complied with the above actions.

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Decision

55. 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