Summary: Mrs X complains about the delay by the Council in issuing her son’s Education, Health and Care Plan (EHCP). She says the Council also ignored her request for reasonable adjustments when communicating with her. We find fault with the Council for the delay in issuing the final EHCP and for not carrying out the reasonable adjustments sought. We have agreed remedies to ensure this does not happen again.

The complaint

1. Mrs X complains the Council:
• Delayed issuing her son’s EHCP for two years;
• Had already decided not to issue an EHCP before her son’s assessment;
• Shared her information without her consent;
• Failed to provide all emails after her Subject Access Request; and
• Ignored her request for reasonable adjustments when communicating with her.
2. Mrs X would like an apology and acknowledgement that it has taken the Council two years to issue the EHCP.

Back to top

What I have and have not investigated

3. I cannot investigate the parts of Mrs X’s complaint about her Subject Access Request or the data protection breach as these are for the Information Commissioners Office to investigate.
4. I cannot look into contents of the EHCP which have appealable rights to the SEND Tribunal.
5. I have investigated the delay with issuing the EHCP, and the failure to carry out the reasonable adjustments Mrs X sought.

Back to top

The Ombudsman’s role and powers

6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
8. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection (Local Government Act 1974, section 24A(6), as amended)
9. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
10. 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)

Back to top

How I considered this complaint

11. I have considered:
• The information provided by Mrs X and in discussion with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative background

Education, health and care plan

13. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
14. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
15. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
16. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Timescales and process for EHC assessment

17. 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 council 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Reasonable adjustments for people with disabilities

18. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
19. Service providers are under a positive and proactive duty to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.

What happened

20. Mrs X is autistic and has two disabled children. She sought an EHCP for her son (J) in January 2021. The Council decided not to issue an EHCP in December 2021.
21. Mrs X appealed to the SEND tribunal, which ordered an EHCP be issued by consent, after the Council agreed to issue the EHCP on 10 June.
22. The Council issued the draft EHCP on 10 July and the final plan on 15 November 2022.
23. Mrs X obtained and paid for reports from an Educational Psychologist, Occupational Therapist and Speech and Language Therapist to support J’s assessment for an EHCP.
24. She gave this evidence to the SEND panel on 8 June where a request to issue the EHCP was agreed.
25. Mrs X complained to the Council in March 2022 about how it managed J’s case, ignoring her reasonable adjustments and sharing her information without her consent.
26. She also complained the Council had decided not to issue an EHCP before the assessment, as she had misinterpreted some of the abbreviations the Council used.
27. Lastly she said there were some missing emails from her Subject Access Request.
28. Mrs X needs all emails to be unencrypted, and for emails to also be sent by post on yellow paper.
29. The Council response was late due to the Easter break. It clarified the abbreviations used and apologised for failing to take note of her reasonable adjustments. It said encrypted emails are sent as standard procedure due to the potential risks of a data breach occurring. The SEND service agreed it would no longer send encrypted emails to Mrs X on 9 December 2021. However various staff members were not copied into the email and were not aware of this reasonable adjustment.
30. It did not uphold her complaint about various members of staff. It apologised for communicating with the school without her consent.
31. Mrs X made a stage two complaint as she felt the Council’s response was unsatisfactory.
32. The Council’s stage two response upheld the stage one response. Mrs X then escalated this to stage three.
33. The Managing Director reviewed the stage three complaint in June 2022. She clarified the response from the first two complaints and signposted Mrs X to the Ombudsman.
34. The final EHCP was still outstanding in September. This caused frustration and distress to Mrs X and she brought a further complaint to the Council in September 2022.
35. Mrs X said the Council were still ignoring her reasonable adjustments, failed to share the consultation response with her when it said it would and did not give her the requested responses from other schools. She also complained the one to one support recommended for J by the Educational Psychologist, was not incorporated into his EHCP.
36. The Council upheld Mrs X’s complaint about her reasonable adjustments and the consultation response, and apologised. A new member of staff had taken over J’s case and was not aware that emails should not be encrypted. The Council said it was not aware that all communication should be sent by hard copy and unencrypted email.
37. It also apologised for sending a password protected email. This was an email from the school to the Council and the Council sent it to Mrs X. A hard copy was also sent out. It has said it will not send any password protected emails in the future.
38. It said it did consider the report by the Educational Psychologist when issuing the EHCP, however Mrs X can appeal to the SEND Tribunal.
39. Mrs X brought her complaint to the Ombudsman. She says she has suffered emotionally, financially and mentally because of the Council’s handling of the EHCP. She had to get the medical reports herself and J has missed school and been without the support he needs in his GCSE year.

Analysis

40. As in paragraph three above, we can only look at the delay with the EHCP and the failure to provide reasonable adjustments. The other parts of Mrs X’s complaint are out of our jurisdiction.
41. The Council should issue the final EHCP within 11 weeks of the draft. In this case the final plan should have been completed by 26 August, but was nearly three months late on 15 November, well into the new school year for J. This is fault.
42. The Council responded late to some of Mrs X’s complaints which is fault.
43. Mrs X says she told the Council in 2021 about her reasonable adjustments. The Council failed to set these up even after she had made a stage three complaint. She emailed the Council on 23 April asking for all correspondence to be sent in the post, so the Council would have been aware of her request from then, if not before. In the stage two response dated 25 May 2022, it says it will send the response by hard copy also, so the Council was aware of her request, but failed to follow it. This is fault.
44. The Council’s faults have caused Mrs X distress, upset and frustration. I make the recommendations below to address the injustice to Mrs X and to prevent recurrence of the fault.

Back to top

Agreed action

45. When recommending a remedy we seek to repair the injustice caused because of identified fault. The Ombudsman’s guidance on remedies states:
• for injustice such as avoidable distress we usually recommend a symbolic payment to recognise the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty, lost opportunity and frustration;
46. I recommend that, within one month of the Ombudsman’s final decision, the Council:
• write a personal apology to Mrs X;
• pay Mrs X £150 to recognise her avoidable distress, frustration and uncertainty;
• pay Mrs X £250 for the failure to implement the reasonable adjustments requested; and
• If the final amended EHCP entitles J to any specialist provision, the Council should backdate this for Mrs X from August 2022.
47. We have made service improvement recommendations to the Council previously to ensure future EHCP’s are issued on time according to statutory timescales. We ask that compliance with our decisions be monitored.
48. I also recommend that, within three months of the Ombudsman’s final decision, the Council should look into how reasonable adjustments can be clearer on peoples’ files. It seems this was human error so if the case management system can make them more obvious it wouldn’t matter if different staff were handling the same case.
49. The Council should provide us with evidence it has complied with the above actions.
50. I note the Council said in response to the draft decision, it will issue further guidance and awareness sessions regarding the pupil based system alerts, which are set to inform staff where reasonable adjustments have been agreed and should be followed.

Back to top

Final decision

51. I find fault with the Council for failing to adhere to statutory timescales, and failing to communicate properly with Mrs X by ignoring her reasonable adjustments. We have agreed remedies for the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman