Summary: Miss B says the Council delayed issuing an education, health and care plan, failed to carry out an occupational therapy assessment, delayed responding to her request for mediation and delayed responding to her complaint. The Council delayed issuing a final EHC Plan, failed to ensure a referral for an occupational therapy assessment was made and delayed responding to her complaint. That meant Miss B’s son missed out on special educational needs provision and Miss B experienced distress and uncertainty. An apology and payment to Miss B, along with a reminder to officers, is satisfactory remedy.

The complaint

1. The complainant, Miss B, complained the Council:
1. delayed completing an education, health and care needs assessment and in issuing an education, health and care plan (EHC Plan);
2. failed to carry out an occupational therapy assessment;
3. delayed responding to her request for mediation;
4. when responding to her request for mediation, decided to carry out a review of the EHC Plan instead which effectively denied her right of appeal;
5. failed to deal with her complaint properly and delayed doing so;
6. failed to seek appropriate input when carrying out the EHC needs assessment;
7. failed to ensure her son’s EHC Plan provided specific, measurable objectives and detailed support strategies.
2. Miss B says the Council’s actions have led to her son missing out on education and special educational needs support and caused her significant distress.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, 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. 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 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)
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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What I have and have not investigated

8. I have investigated points a-e in paragraph 1. I have not investigated points f and g in paragraph 1. That is because those points relate to the quality of the EHC Plan the Council produced. Miss B had a right of appeal about what the Council included in the EHC Plan. That means those parts of the complaint are outside the Ombudsman’s jurisdiction.
9. I am exercising the Ombudsman’s discretion to investigate what has happened since Miss B asked for an EHC needs assessment in April 2023 even though that is more than 12 months before her complaint to the Ombudsman. That is because I am satisfied Miss B did not let the matter drop and there were other factors, including negotiations around the EHC Plan and mediation issues, which were ongoing at the time.

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How I considered this complaint

10. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
11. Miss B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The statutory guidance

12. A child or young person with special educational needs (SEN) may have an 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.
13. The Special Educational Needs and Disability Code of Practice is statutory guidance (the code of practice). It 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:
• Where a 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).
14. If the parent or young person decides to proceed with mediation then the local authority must ensure that a mediation session takes place within 30 days of the mediation adviser informing the local authority that the parent or young person wants to go to mediation, although it may delegate the arrangement of the session to the mediator. Parents or young people do not have to pay for the mediation session(s). The local authority must attend the mediation.

What happened

15. Miss B’s son has special educational needs. Miss B’s son was attending his primary school for half days only as the school could only provide him with additional support in the morning until he had an EHC Plan.
16. Miss B asked the Council to complete an EHC needs assessment on 18 April 2023. On 12 June the Council wrote Miss B to tell her it intended to carry out an EHC needs assessment.
17. The Council received the advice from the educational psychologist on 27 September. Miss B raised concerns about the quality of that report as the educational psychologist had not met her son. The Council asked for an updated report. The Council received a second report on 27 October. The Council issued a draft EHC Plan on 13 November.
18. Miss B asked for amendments to the EHC Plan and a meeting to discuss her concerns. That meeting took place on 18 December. The Council issued an amended draft EHC Plan on 21 December.
19. On 21 January 2024 Miss B asked the Council to finalise the EHC Plan. The Council issued a final EHC Plan on 16 February.
20. Miss B put in a complaint on 16 February.
21. In April the mediation adviser contacted the Council on Miss B’s behalf to request mediation about sections B and F of the EHC Plan. The Council and the mediation adviser offered Miss B three dates but she did not respond.
22. The Council responded to Miss B’s complaint at stage one on 8 May. In that complaint response the Council noted Miss B had asked for a mediation meeting which would give her another opportunity to share her requested changes.
23. Miss B asked the Council to take the complaint to stage two. The Council responded to that complaint on 10 June. In that complaint response the Council said Miss B needed to go to her GP to request an occupational therapy assessment. The Council said it was happy to fund an occupational therapist assessment if Miss B or the school identified one. The Council also noted Miss B had requested a mediation meeting which would give her an opportunity to share her requested changes.
24. Miss B contacted the Council about the mediation meeting in October. The Council said due to the time that had passed an annual review would be best placed to address the concerns. That annual review has now taken place.

Analysis

25. Miss B says the Council delayed carrying out an EHC needs assessment and in issuing a final EHC Plan. The Council has six weeks from the request for an EHC needs assessment to confirm whether it intends to carry out a needs assessment. As Miss B asked for an EHC needs assessment on 18 April 2023 the Council should have told Miss B whether it would carry out the needs assessment by 30 May 2023. As the Council did not tell Miss B it intended to carry out the EHC needs assessment until 12 June the Council failed to meet the required timescale. That is fault.
26. The code of practice is clear the entire process from the request for an EHC needs assessment up to the issue of the final EHC Plan should take no more than 20 weeks. That means the Council should have issued a final EHC Plan by 5 September 2023. However, the Council failed to issue a final EHC Plan until 16 February 2024. That is a delay of more than 23 weeks and is fault. That delay meant Miss B’s appeal rights were also delayed.
27. I recognise the Council says some of the delay happened because it was seeking to work with Miss B to make amendments to the EHC Plan. While I recognise the Council was trying to be helpful the code of practice is clear about the timescales the Council must comply with. So, working with parents on an EHC Plan should not delay the overall process and the Council is still required to issue the final plan within 20 weeks. As part of the remedy for this part of the complaint I recommended the Council remind officers dealing with EHC needs assessments of the need to ensure they comply with the timescales set out in the code of practice. The Council has agreed to my recommendation.
28. Miss B says the Council failed to arrange an occupational therapy assessment even though it is included in her son’s EHC Plan. The EHC Plan the Council issued in February 2024 includes:
• ‘referral to occupational therapy service to request assessment of needs to identify needs and inform future approaches, in line with the protocols and procedures of this service.’
29. That does not make clear who will make the referral to the occupational therapy service. However, as it is included in section F of the EHC Plan the Council was responsible for ensuring the referral was made. Failure to do that is therefore fault. That leaves Miss B with some uncertainty about whether her son has missed out on extra occupational therapy provision. As part of the remedy for this part of the complaint I recommended the Council ensure a referral is made to occupational therapy. The Council has agreed to my recommendation.
30. Miss B says the Council delayed responding to her request for mediation. Miss B says she asked for mediation in April 2024 and the Council did not respond until October 2024. Miss B says the Council unreasonably then decided to carry out a review rather than arranging mediation which effectively denied her right of appeal.
31. The evidence I have seen satisfies me the mediation adviser requested mediation on Miss B’s behalf in April 2024. The mediation adviser has also confirmed it offered Miss B three dates for mediation by telephone and Miss B did not respond. I do not have any evidence about when those dates were offered to Miss B. However, I note when responding to the stage one and two complaint in May and June 2024 respectively the Council noted Miss B had asked for mediation. I would therefore have expected the Council to make a further attempt to arrange mediation and I have seen no evidence it did so following the complaint responses. That is fault.
32. I have also seen no evidence though to suggest Miss B made any further contact with the Council until October 2024. That was eight months after the Council had issued the final EHC Plan. In those circumstances I could not criticise the Council for deciding a review would be a better way forward given the passage of time. I do not consider that effectively denied Miss B’s right of appeal. That is because I am satisfied she had that right of appeal when the Council issued the EHC Plan in February 2024. Miss B could have put in an appeal to tribunal. The tribunal could then have considered whether to accept the appeal.
33. Miss B says the Council delayed responding to her complaint and failed to provide full explanations. The Council accepts it delayed responding to the complaint. That is fault. The Council also accepts it could have provided a clear explanation of its findings when responding to the complaint. That is also fault. I am satisfied the Council has acted to address the issues that arose in this complaint by reviewing its practice. The Council says weekly meetings take place with head of services and the director to ensure complaints are dealt with promptly. I welcome that.
34. I now have to consider what personal remedy is appropriate to reflect the injustice caused to Miss B and her son because of the faults I have identified in this statement. I am satisfied the delays completing the EHC Plan process delayed Miss B’s appeal rights and meant her son missed out on special educational needs provision for 1.5 terms. That is important because Miss B’s son could not attend full days at school without the provision in the EHC Plan.
35. The Ombudsman normally recommends £100 per month to reflect the delay completing the EHC Plan because of delays identifying an educational psychologist. In this case there was a five-month delay and I therefore recommended the Council pay Miss B £500. The Council has agreed to my recommendation.
36. For the missing education I take into account Miss B’s son could not attend his allocated school full-time without the provision in his EHC Plan in place. As the EHC Plan should have been in place from 5 September 2023 and was not in place until 16 February 2024 I consider that affected 1.5 terms. Taking into account the fact Miss B’s son could only attend 50% of his school day without the additional support in the EHC Plan I consider an appropriate financial remedy would be for the Council to pay Miss B £600 per term which equates to £900. The Council has agreed to my recommendation.
37. There is then the uncertainty about whether Miss B’s son would have received additional occupational therapy provision if the Council had ensured a referral to occupational therapy took place. There is also uncertainty around what would have happened if mediation had taken place. To reflect Miss B’s uncertainty around that I recommended the Council pay her £300. That makes a total of £1,700, which is what the Council has offered to remedy the complaint. I consider that, alongside an apology to Miss B, satisfactory remedy.

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Action

38. Within one month of my decision the Council should:
• apologise to Miss B for the distress, uncertainty and frustration she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Miss B £1,700;
• ensure a referral is made to occupational therapy in line with section F of the EHC Plan;
• send a reminder to officers dealing with EHC needs assessment and EHC Plans about the need to comply with the timescales set out in the code of practice.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman