Summary: Ms X complains about the way the Council dealt with a review and reassessment of her daughter’s Education Health and Care Plan. The Council has accepted it was at fault. It has already apologised to Ms X and offered a payment in recognition of the delays and Ms X’s time and trouble in pursing her complaints. We consider it a suitable remedy in this case and so are completing our investigation.

The complaint

1. I have called the complainant Ms X. She complains about the way the Council dealt with a review of her daughter Y’s Education Health and Care Plan (EHCP). Ms X says the Council took longer to issue a review and reassessment than the statutory timescales specify and its communication with her throughout the process was poor.
2. Ms X says although the Council acknowledged its delays, poor communication and offered a remedy it does not fully recognise the impact this had on Ms X and Y. Ms X considers Y has missed out on the specialist school provision she needs, and her behaviour has deteriorated as a result.

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What I have investigated

3. I have investigated Ms X’s concerns about the Council’s delays in carrying out the EHCP review and reassessment. I have considered the remedy offered by the Council. I have not investigated Ms X’s concerns about the outcome of the EHCP review and reassessment. I explain my reasons for not doing so in the decision statement.

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The Ombudsman’s role and powers

4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6))

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended). 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.
8. 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)
9. 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.

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How I considered this complaint

10. I have read the documents submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
11. Ms X and the Council 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

Education, Health and Care Plan (EHCP)

12. A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.

Appeals

13. Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment. Or they disagree with the special education provision, or the school named in the child’s EHCP.

Assessments

14. 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:
• Where a local authority receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
• 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.
• 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).

Annual Reviews

15. Councils must review EHCP’s at least every 12 months.
16. Councils must decide whether to maintain the EHCP in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The Council should issue the final EHCP or decide not to amend the EHCP at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments. Decisions to amend or cease a plan can be appealed to the Tribunal.

What happened in this case

17. This section sets out the key events in this case and is not intended to be a detailed chronology.
18. Y has Autistic Spectrum Disorder (ASD). She has an ECHP and attends a mainstream primary school I will refer to as School A. The Council and school carried out an annual review of Y’s EHCP in February 2020. The Council received annual review documents from School A in June 2020.
19. The Council agreed to amend Y’s EHCP and issue a proposal to amend. The case officer sent a consultation to a school with specialist ASD provision requested by Ms X. I will refer to the school as School B. School B said it could meet Y’s needs but oversubscribed in all school years and had no capacity to make more space.

Final amended plan issued September 2020

20. The Council says it issued a final amended plan in September 2020 naming School A as the setting in Y’s EHCP. The plan reflected changes agreed at the review meeting. The Council scheduled a further annual review for February 2021. Ms X did not agree School A could meet Y’s needs. Ms X said Y needed 1:1 support and would not be able to continue in school without it.

Reassessment of Y’s needs December 2020

21. In December 2020 the Council agreed to reassess Y’s needs to gain up to date advice from professionals to ensure the EHCP was a true reflection of Y’s needs. And received the most appropriate support in place. The professionals involved have 16 weeks to send in reports. Ms X submitted her comments in January 2021 and chased the Council several times for an update. The Council acknowledged only one of Ms X’s contacts which it accepts was poor practice and has taken action to address this.
22. The Council reallocated Y’s case to a different case worker in April 2021 because of staff absences. The Council completed and issued a draft EHCP and consulted with specialist provision schools including School B.

Ms X’s stage 1 complaint

23. Ms X complained to the Council in May 2021 about the EHCP and current reassessment as it had taken over six months. The Council accepted it had exceeded the statutory timeframes. The Council apologised unreservedly for the delays and impact on Y and the family.
24. The Council explained it had changed the case officer due to the delays. The new case worker consulted in line with Ms X’s expressed preference for a placement for Y. The Council said it would make a decision and name a suitable placement once it had all the information back. The Council advised it had carried out recruitment for its SEN team to increase resources and it was working to improve communications with parents.

EHCP issued June 2021

25. All the schools consulted sent responses in early June 2021. School B said again it was at full capacity. The Council did not offer Y a place at School B as it considered it would be incompatible to the efficient education of others to offer her a place. The Council named a school I will refer to as School C, as the setting in Y’s EHCP. School C offered enhanced provision with a specialist base for children with ASD and said it could meet Y’s needs.
26. Ms X did not agree with the Council’s decision to name School C so appealed to the SEND Tribunal in September 2021.

Ms X’s stage 2 complaint

27. Ms X complained to the Council at stage 2 of its complaint procedure. Ms X considered the issues she raised about the EHCP process were continuing. Ms X expressed concerns about the Council’s communication, timeframes, and quality of reports. Ms X considered the process frustrating and affecting her personal health. Ms X wanted the Council to apologise and address its communications with parents and ensure it met statutory timescales.
28. The Council responded and explained what happened in Y’s case. The Council accepted it had delayed and its communication poor at times. The Council said it should take 20 weeks for the EHCP assessment from December 2020 and issued it in April 2021.
29. The Council accepted it failed to deliver within the specified timescale so there was an impact on Y’s well-being and education. This meant she had potentially missed appropriate support during that time. The Council agreed to apologise to Ms X. It offered to pay her £500, made up of £300 for the delay in completing Y’s EHCP and £200 for Ms X’s time and trouble in making her complaint.
30. The Council said the case officer would continue to work with Ms X to agree a working document and placement in line with her parental request. The Council issued an EHCP in January 2022. The plan named School A as Y’s setting with her transitioning to School B, a specialist setting, from June 2022.
31. In February 2022 the Council and Ms X told the SEND Tribunal it had agreed on the content of Y’s EHCP. It was concluded in the interests of justice to resolve the appeal by consent and there were no further issues for the Tribunal to consider. The Council agreed a placement for Y at school B starting in September 2022 as the school had availability then. The Council says Y remained on a consideration list for a priority placement at School B and it could offer a placement in line with Ms X’s parental request from September 2022.

The Council’s response to the complaint

32. The Council accepts it delayed completing the proposal to amend Y’s ECHP following the review in February 2020. The Council is unsure why there was a delay in receiving the documents between February and June 2020. The Council decided to amend the ECHP in June 2020 and completed the final EHCP in September 2020. The Council confirms it should have competed this within 8 weeks of the amendment notice and within 12 weeks of the date of review in line with the SEND Code of Conduct.
33. The Council comments Ms X had the opportunity to challenge the provision identified in Y’s EHCP after it issued the amended plan in September 2020. Ms X chose not to exercise her right of appeal.
34. The Council says despite offering a specialist placement to Y she has never attended school C. This was due to Ms X’s view it was in Y’s best interests to remain at school A. The Council says the specialist placement at School C remained in place from September 2021 until the SEND Tribunal ruling in February 2022. The Council agreed to continue to fund 1:1 provision for Y at School A until the Tribunal resolved the appeal. The Council says while there were some changes to Y’s EHCP it cannot find any clear evidence Y missed a significant amount of provision during this time due to the delay.
35. The Council accepts it delayed completing the reassessment of Y’s needs which started in December 2020 but not finished until June 2021. The Council accepts this was over the 14-week requirement in the SEND Code of Practice. The Council comments that following the reassessment beginning in December 2020 and the Tribunal appeal it made some amendments to Y’s EHCP, but these were not significant. The amendments included changes to speech and language provision and access to small group zone of regulation to help with social emotional and mental health.
36. The Council confirms that because of Ms X’s wish for Y to remain at School A before her transition to School B in September 2022 it has funded 1:1 provision for her. And this has been in place since 2018. The Council has no evidence Y has not been attending School A and the offer of a specialist placement has been available since June 2021.
37. The Council says it has apologised to Ms X and its offer of £500 remains. It acknowledged delays in amending Y’s EHCP in 2020 and 2021. But considers the remedy offered is reasonable and proportionate to the injustice caused.
38. The Council has acted since Ms X submitted her complaint and improved its service delivery for SEN. It recruited new caseworkers and developed a communication policy to ensure it takes decisions at the earliest possible point. It has a renewed focus on meeting statutory deadlines within the 20-week process and has been successful in doing so.

Comments on the draft decision

39. In commenting on the draft decision Ms X says the Council did not issue a final amended plan in September 2020. Ms X says the EHCP was due to be finalised on 30 September 2020, but she asked the Council not to issue it due to concerns she and the school held about the suitability of the school as Y’s placement. Ms X said she wanted to discuss the placement with the school. Ms X provided copies of emails with the Council in support of her comments. The emails show the Council acknowledged Ms X’s request and agreed to place the EHCP on hold until it heard further from her. An officer contacted Ms X in November 2020 asking about the meeting with the school as the Council was looking to finalise the EHCP. It was then agreed to hold a meeting and carry out a reassessment of Y’s needs.
40. The Council responded to my further enquiry about whether the final amended plan was issued in September 2020. It says it completed the final amended plan on 30 September 2020 and confirms it would have been shared with parents in line with its procedures. But it has been unable to locate a cover letter to Ms X about the final amended plan.

My assessment

41. The Council accepts it delayed in carrying out the proposal to amend Y’s ECHP as it took between February 2020 to September 2020 to issue the final amended ECHP. If the final amended EHCP was issued in September 2020 then this would be fault by the Council as it took longer than the timescales named in the SEND Code of Practice.
42. But it is unclear whether the Council did issue the final amended EHCP in September 2020. The Council sent emails agreeing to place issuing the final plan on hold and then chasing it up in November 2020. Plus, the lack of a covering letter for September 2020 suggests, on the balance of probabilities, the Council did not issue the final amended EHCP then. So, Ms X was unable to challenge Y’s placement at School A by an appeal to the SEND tribunal.
43. As paragraph six explains we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. I consider would have been reasonable to expect Ms X to have used her appeal rights if she did not agree with the outcome of the amended final plan. This is because the SEND Tribunal can consider any concerns Ms X has and direct changes to the EHCP if it considers it necessary.
44. But if the Council did not issue the EHCP it was due to Ms X requesting it not to do so. And by making her request Ms X prevented her formal means of challenging the decision. It is unfortunate as this may have resolved matters sooner. However, despite not issuing the final amended plan the Council carried out a reassessment of Y’s needs and was continuing to fund 1:1 support for Y at the school. It has also offered a financial remedy for any delays caused. Because of this I do not consider any further investigation on this point will achieve anything more for Ms X.
45. The Council accepts it delayed carrying out the reassessment of Y’s needs from December 2020 until June 2021 when it issued a final ECHP naming school C, a school with enhanced and specialist provision. The delay is fault by the Council as it failed to meet the timescales specified in the SEND Code of Practice.
46. Ms X exercised her right of appeal to the SEND Tribunal. As paragraph seven says we cannot investigate a complaint where a person has appealed to a tribunal. So, I cannot investigate the complaint from the point Ms X exercised her right of appeal in September 2021 until after the tribunal decision in February 2022. The Council has now offered Y at placement at school B which was the outcome Ms X was seeking.
47. The Council has apologised to Ms X for the delays and poor communication while dealing with Y’s ECHP. It has issued an apology and offered Ms X £500. Ms X remains unhappy with the Council’s proposed remedy.
48. While the Council is at fault for the delays and poor communication, I consider Y has suffered a limited injustice as a result. This is because she has been able to attend school A with 1:1 provision funded by the Council. As Ms X said in September 2020 Y needed this type of support. Ms X could have appealed in September 2020 if the EHCP had been issued which may have resolved Y’s placement sooner. In addition, the Council offered Y a specialist placement at School C from September 2021 which was the type of provision Ms X was seeking for Y. The placement has remained available to Y. Ms X chose not to take up the placement with specialist ASD provision.
49. Y has also been attending School A and I have not seen any evidence she has missed a significant amount of provision during the delay. This is because Y has been receiving 1:1 support in school and there have been only minor changes to the ECHP provision. So, I consider the Council’s offer of £500 a suitable remedy for the injustice caused in this case, and I do not recommend a further financial remedy for any missed provision. The Council’s offer of £300 acknowledges the delay in 2020 and 2021. The offer of £200 for Mr X’s time and trouble acknowledged the effort Ms X has been put to in pursuing her complaints.
50. The Council has also ensured it has improved its SEN service to meet the statutory timescales laid down and improved its communications with parents. These are the outcomes Ms X was seeking in making her complaint. So, I do not consider I can add anything to the investigation already carried out by the Council or achieve anything further for Ms X.

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Final decision

51. I am completing my investigation. I have found fault in the way the Council dealt with Y’s EHCP review and reassessment. The Council has offered a suitable remedy in this case.

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Investigator's decision on behalf of the Ombudsman