Summary: Mrs B complained that the Council delayed in completing an Education, Health and Care (EHC) Plan for her daughter, D. She also complained about the complaint-handling and the lack of education for D during this period. We found the Council delayed in completing the process and issuing a final EHC Plan, but we considered that the Council’s offer of £450 is a suitable remedy for the injustice caused to Mrs B.

The complaint

1. Mrs B complained that Kent County Council (the Council) in respect of her daughter, D, delayed in completing an Education, Health and Care (EHC) needs assessment and producing a final EHC Plan. She said it also failed to consider provision of alternative education during this period (6 February 2024 to 1 July 2024). This caused Mrs B significant distress and uncertainty and delayed the provision of essential support for D at an already difficult time.

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The Ombudsman’s role and powers

2. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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. 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. 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)
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(1), as amended)

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What I have and have not investigated

7. I have investigated the period from 6 February 2024 when Council agreed to the EHC needs assessment to 1 July 2024 when the final EHC Plan was issued.

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How I considered this complaint

8. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
9. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
10. 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

Special educational needs

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 the council can do this. 

EHC needs assessments

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).

Appeal rights

13. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• 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 in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

Where appeal rights have been engaged

14. 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)
15. 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.

What happened

Background

16. Mrs B’s daughter D struggled to attend school in 2023 due to a decline in her mental health. Mrs B believed this was due to a lack of special educational support. Mrs B requested an EHC needs assessment on 27 September 2023. On 22 November 2023 the Council decided not to assess. On 20 December 2023 Mrs B appealed. In January 2024 an educational psychology report (requested by the school and Mrs B in November 2023), noted D was not attending school and was reluctant to engage in online learning an issue triggered by school-related discussions. It noted Mrs B has explained that currently D’s health necessitated a break from academic pressures. It also said D had been unable to participate in face to face involvement at the time of the assessment and there was a risk she would become overwhelmed by any additional professional or educational involvement at this time. D spent a period in hospital in January 2024.

Assessment agreed

17. On 6 February 2024 the Council agreed to carry out an assessment. It arranged an appointment with an educational psychologist (EP) on 21 March 2024, and their report was completed on 8 April 2024. This noted that D was medically unfit for education.
18. D went into hospital again in April 2024. The Council issued a draft EHC Plan on 22 April 2024. Mrs B was very unhappy with the draft plan as it did not contain any health information despite D’s hospital admissions and ongoing treatment. She sent her amended version back to the Council and it reconsulted the EP.
19. On 9 May 2024 Mrs B complained to the Council about the delay. D spent more time in hospital in June 2024.
20. The Council issued the final EHC Plan on 7 July 2024. Mrs B appealed to the Tribunal.

Complaint

21. The Council responded to Mrs B’s complaint at stage one of its complaints procedure on 17 July 2024. It acknowledged the process had been frustrating and that Mrs B had appealed against the original decision not to assess D. It confirmed that it had agreed to some of Mrs B’s amendments but not all as there was no evidence from health professionals to support them. It also had to go back to the EP to consult on some of Mrs B’s requested changes. It apologised for the delay.
22. Mrs B escalated her complaint to stage two on 1 September 2024. The Council responded on 10 February 2025. It apologised for unsatisfactory stage one response and for the delay in responding. It accepted it should have taken ownership of its errors and apologised for the tone of the letter. It offered further apologies for the poor standard of the draft EHC Plan and for the poor service she had received. It offered her £300 for the undue stress and frustration these errors caused and £150 for the inadequate response at stage one.

Findings

Assessment delay

23. The Council should have completed the EHC needs assessment by 14 May 2024 (14 weeks after it agreed to assess). It completed the process on 1 July 2024, approximately seven weeks late. This was fault which caused Mrs B significant distress and frustration.

Complaint -handling

24. The Council sent an inadequate response to Mrs B’s initial complaint and then took far too long to respond to the stage two complaint: five months rather than four weeks. This caused unnecessary time and trouble and frustration to Mrs B.

Alternative provision

25. The Council did not offer any alternative education as Mrs B had said from early 2024 that D was not medically fit for education due to her health problems. This was confirmed by the educational psychologist in April and May 2024. D was in hospital for periods in January, April and June 2024. I have not found fault with the Council’s decision that D was not fit for education during this period.

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Action

26. I welcome the Council’s offer of £450 in recognition of the injustice caused to Mrs B. Given that D was not fit for education during this period I consider the amount of £300 for Mrs B’s distress is in line with our guidance on remedies and the additional £150 for the complaint handling errors is also in line with that guidance.
27. So, I recommend within one month of the date of my final decision, that the Council pays Mrs B £450.
28. The Council has agreed to the recommendation and should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman