Summary: Mr X complained about how the Council handled his son, A’s, Education and Health Care needs assessment following an Order the Special Educational Needs and Disabilities Tribunal made in May 2024. We found the Council was at fault for the delay in finalising A’s needs assessment. The Council agreed to pay Mr X £300 to recognise the uncertainty the delay caused him.

The complaint

1. Mr X complains that following an Order the Special Educational Needs and Disabilities (SEND) Tribunal made in May 2024 the Council failed to:
• complete the EHC needs assessment process and issue A’s final EHC Plan within the statutory timescales;
• ensure it had received back the requested advice from his son’s education setting, medical advice from paediatrician and physiotherapist; and
• communicate with him effectively about the progress of the EHC needs assessment and his case.
2. Mr X says this caused him and his family avoidable distress and frustration.
3. Mr X would like the Council to apologise for raising his expectations about its ability to have all the necessary information in order to complete A’s EHC needs assessment in time following the SEND Tribunal Order from May 2024. He would also like the Council to make changes to its procedure so that this does not happen to other families.

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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 Mr X and Council as well as relevant law, policy and guidance.
14. Mr X and the Council have 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 (EP), 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.

What happened

30. The Council said that in January Mr X told the Council’s school admission team that he wished to defer A starting school to September 2025.
31. In February 2024 Mr X made an appeal to the SEND Tribunal about the Council’s decision not to issue an EHC Plan for A.
32. In mid-April 2024 the Council contested the appeal. At the end of the month the Council said that it asked Orthodontics, Physiotherapy and Paediatrics for advice. This was the day Mr X chased the Council about referrals.
33. In early May the Council told Mr X that it would consider the appeal and agreed to carry out the EHC Needs Assessment. The SEND Tribunal issued a Consent order five days after this. From this moment the Council had 20 weeks to complete the Needs Assessment. Mr X said the only reason he agreed to withdraw his appeal was because the Council assured him it would have all the necessary professional advice in time to complete the assessment within the statutory timeframe.
34. In early June the Council received back the advice from A’s educational setting to inform his EHC Plan.
35. Mr X complained to the Council in early June 2024. He said the Council failed to comply with regulation 6.1 to get advice from services to inform Needs Assessment. Specifically, from Educational Psychology, Orthodontics, Paediatrics, Physiotherapy and education setting.
36. In early July the Council replied to the complaint and explained that regulation 6.1 says the Council should “seek” the advice, which it did in April 24. The Council said it had no power to compel these providers to undertake assessments. The lack of reports from NHS services should be taken up with a complaint to the NHS, and the education advice was handed back in time. The Council accepted Educational Psychologist’s report was delayed but was due in the next few days. The Council apologised for the delay. On the same day the Council received the response from the paediatrics to inform A’s EHC Plan but it did not mention this to Mr X.
37. In mid-July 2024 Mr X asked the Council to consider his complaint further.
38. The Council issued its final response in early August 2024. It accepted it failed to:
• comply with the timelines following the February 2024 SEND Tribunal’s Order as it did not take action until late April 2024;
• seek external Educational Psychologist’s advice; and
• communicate with Mr X effectively about the progress of the assessment and the estimated time for issuing A’s EHC Plan.
39. Mr X was not happy about the Council’s response and it asked us to consider his complaint.

Analysis

EHC needs assessment and communication standards

40. The Council accepted that it was at fault for the delay in completing A’s EHC Plan assessment following the SEND Tribunal Order from May 2024.
41. This caused Mr X avoidable frustration and uncertainty about when the Plan would have been issued. He said this especially affected his since in May the Council assured him it would make sure A’s assessment was completed on time, but it did not which raised his expectations.
42. The Council said that the delay was caused by a shortage of Educational Psychologists. When Mr X complained about the delay the Council did give him an estimated time of when it would have the report, but not of when it would issue the EHC Plan. We consider the Council missed an opportunity to keep Mr X fully updated which could have eased some of the frustration he was experiencing.
43. Additionally, the Council said that it kept the EHC Plan at draft stage while it attempted to secure a school place for A. It accepted it should have finalised the Plan sooner and allowed Mr X to appeal it if he disagreed with the contents.
44. We consider the Council took sufficient corrective action, such as creating the recovery plan to address the shortage of the EPs, however it still failed to deliver the EP report within the required timescale which is a service failure. This caused Mr X avoidable uncertainty.
45. The Council apologised and took several corrective actions to ensure this would not happen to another family. We welcome the changes the Council made; however we consider the Council should make a symbolic payment to Mr X to recognise the avoidable uncertainty its actions caused him.

Advice requests from specialists

46. The Council is correct in saying that it has no power to complete provisions in completing the requested reports as part of the Education and Health Care Needs Assessments. However, the Council accepted it was at fault for not proactively chasing the providers that it had agreements with.
47. We consider the action the Council has taken in response to Mr X’s complaint such as internal training officers, recruitment of additional staff and Accredited courses relevant to the SEN suitably address the injustice the Councils actions caused. Because of this we have decided no to make any further service improvement recommendations.

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Action

48. Within one month of the date of the final decision statement, the Council will:
• pay Ms X £300 to recognise the avoidable uncertainty the Council’s delay in finalising A’s EHC Plan and inconsistent communications caused him.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. We have found the Council was at fault in the statutory process and this caused Mr X avoidable uncertainty.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman