Summary: Miss X complains the Council delayed in issuing her child, Y’s, Education, Health and Care Plan. Miss X also says the Council gave incorrect information about whether consultations had been sent out or responses received. Miss X says this caused her distress and for Y’s education to be affected. We have found fault in the Councils actions for failing to issue Y’s Education, Health and Care Plan within statutory timescales. The Council has agreed to write to Ms X to apologise, pay her a symbolic payment and complete a service improvement.

The complaint

1. Miss X complains the Council delayed in issuing her child, Y’s, Education, Health and Care (EHC) Plan. Ms X also says the Council gave incorrect information about whether consultations had been sent out or responses received.
2. Miss X says this caused her distress and for Y’s education to be affected.

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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 law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (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. 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)
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 not investigated Miss X’s complaint about consultations. This is because Miss X has appealed section I to the tribunal. 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)

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How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
10. Miss X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

Education Health and Care Plans

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. 
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;

What happened

14. Miss X requested an Education, health and Care Needs Assessment for her son Y in late October 2023.
15. The Council responded to Miss X in late December 2023 to say it had allocated the case to an officer. The Council then issued a decision in late January 2024 which said it had decided not to assess Y.
16. The Council and Miss X attended mediation regarding its decision not to assess Y in late March 2024. The Council told Miss X in early April 2024 that following mediation it had now decided to assess Y.
17. Miss X asked the Council when it would allocate an Educational Psychologist (EP) to Y’s case in early May 2024. The Council responded to say an EP would be in contact when available.
18. The Council emailed Miss X in June 2024 to say it had had to defer the decision on whether to issue Y’s EHC Plan as it had not received professional advice.
19. Miss X chased the Council in early December 2024 to ask when it would allocate an EP to Y’s case, and the Council confirmed it had flagged the case as urgent.
20. The Council emailed Miss X in mid-December 2024 to say it had allocated an EP to Y’s case and they would be in contact with Miss X and the school shortly.
21. The Council received EP advice in mid-March 2024 and told Miss X it agreed to issue an EHC Plan for Y in early April. The Council said it would issue a draft EHC Plan.
22. Miss X chased the draft plan in late April 2024 and again in late May 2024. The Council responded in late May 2024 to say it had written the draft plan and it was awaiting quality assurance.
23. The Council issued a draft plan in mid-June 2024. Miss X provided comments and asked for amendments to the draft plan in late June 2024.
24. Miss X raised a complaint with the Council in early August 2024 and said she was unhappy with the delays in issuing Y’s EHC Plan. She said there was a long delay for EP advice and raised concerns about whether the Council sent consultations or received responses.
25. The Council responded to Miss X’s complaint in early September 2024 and said it apologised for any miscommunication regarding the consultations. It also confirmed Y's case would be managed by a Team Leader.
26. Miss X told the Council she was unhappy with its stage one response in early September 2024.
27. The Council issued a final EHC Plan for Y in October 2025. Miss X appealed section I to the tribunal shortly after.

Analysis

28. The Council received Miss X’s request for a needs assessment in October 2023 but did not issue a decision on whether to complete an assessment until late January 2024. This is outside the statutory timescales and is fault. This would have caused Miss X distress and frustration.
29. Following the Council’s decision not to assess Y, it attended mediation with Miss X and then decided to assess Y.
30. The Council then took a further 18 months to issue a final EHC Plan which is significantly outside the statutory timescales. This is fault and would have caused Miss X distress and frustration. I do acknowledge a large part of this delay was due to waiting for professional advice.

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Action

31. Within four weeks of a final decision the Council should:

• Write to Miss X to apologise for the distress and frustration caused by the faults identified. 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.
• Pay Miss X £1,800 in recognition of the distress and frustration caused by the delay in issuing Y’s EHC Plan. This is calculated at around £100 per month.
• Advise the Ombudsman what action the Council plans to take to reduce the delays in issuing EHC Plans.

32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman