Summary: There was fault in the Council delaying issuing an Education, Health and Care plan for Mrs X’s daughter. There was also fault in the Council’s communication with Mrs X including after she made a formal complaint. Those delays caused an injustice to Mrs X because of uncertainty about her daughter’s Special Education Provision. The Council have already apologised and have now agreed it will pay Mrs X a financial remedy to properly recognise her injustice.

The complaint

1. Mrs X said the Council delayed finalising her daughter’s Education Health and Care plan (EHCP) after she asked it to carry out an EHC assessment. Mrs X said this meant her daughter (Y) missed special education provision (SEP).
2. Mrs X said this meant Y has fallen behind in her education and this impacted on her self-esteem.
3. Mrs X also said the Council’s delays and poor communication about this, caused her avoidable stress and inconvenience.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs. This is when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
7. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is linked to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
8. 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

9. I spoke to Mrs X and considered the information she provided.
10. I considered the Council’s comments and the documents it provided.
11. I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
12. I have also considered our Guidance on Remedies.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

Special Education Needs

14. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
15. 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.
16. 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.

What happened

Background

17. Mrs X moved to the Council’s area in June 2022, and applied for Y, to join the local mainstream school. Mrs X told me that Y had a Special Educational Needs (SEN) statement at the Council area where they previously lived, and this had lapsed in November 2021.
18. Mrs X told me she contacted the SEN department at the Council in early July, asking it to help secure Y a place at this school.

Request for EHCP

19. Mrs X and the Council discussed a new EHC needs assessment in late July.
20. In early August, the Council asked Mrs X’s previous Council for more information. In late August it wrote to Mrs X, agreeing it would carry out an EHC needs assessment.
21. The letter also said Mrs X would have a named contact at the Council team dealing with her request. This did not happen.
22. Mrs X told me that Y was increasingly having difficulty at her new school, from September onwards, and the school placed her on a reduced timetable. In late September, Mrs X wrote to the Council asking for an update on Y’s EHC needs assessment and asked whether the Council could offer any support with Y’s school provision.
23. Mrs X got no response to this. She followed this up in late October and then again in mid-November. Because she got no reply to these, Mrs X then made a formal complaint.
24. In early January, the Council replied to Mrs X and apologised it had not given her a named contact when it earlier said it would (paragraph 21). It also apologised for not responding to her request for support, in late September.
25. The Council told Mrs X the delays in the EHCP process was because it hadn’t been able to get an assessment from an Education Psychologist. And it upheld Mrs X’s complaint.
26. The Council also said until it issued the final EHCP, it could not ask for extra school provision and that Mrs X should speak to the school about this.
27. In mid-December, the Council issued a first draft of Y’s EHCP. In mid-January, the Council told Mrs X a panel would decide about Y’s school placement at the end of January, thereby allowing it to finalise Y’s EHCP.
28. In early March, Mrs X complained again, asking for her complaint to be raised to stage two of the corporate complaints process. She said the Council had not yet issued a final EHCP.
29. The Council replied in mid-May, apologising for the delay and gave Mrs X an explanation. It said the panel it held in January needed more information. It also said in April it had issued a second draft EHCP and was consulting with Y’s school.
30. In mid-June the Council issued a final EHCP and Mrs X told me she then lodged an appeal with the SEND Tribunal about the named school.

My findings

31. The statutory guidance says the Council has 20 weeks to issue an ECHP from when a request is made for an EHC assessment. This was in late July, meaning the Council should have issued a final EHCP by mid-December 2022. It did not do so until mid-June 2023. This was late and was fault. The Council have apologised for this already.
32. This fault caused an injustice to Mrs X, because of the uncertainty she had about her daughter’s SEP.
33. I cannot fully assess the injustice to Y for the potential missing SEP between December 2022 and June 2023. We do not yet know what the outcome will be, until after the SEND Tribunal makes a ruling.
34. There was no fault in the Council saying Mrs X should approach Y’s school to get more support for Y’s education before it had issued a final EHCP. However, Mrs X could have had this advice much sooner when she first raised it in September. It did not do this until January, and this was poor communication. This is also a fault and the Council have apologised for this.
35. This poor communication caused an injustice to Mrs X, because she had to raise a complaint. The Councils’ customer standards policy says it will respond to all complaints within ten working days. The Council was late here, and this will have added to Mrs X’s concerns.
36. This poor communication and delay will likely have caused Mrs X some uncertainty in chasing this with the school. The Council should now offer Mrs X a financial remedy to properly recognise her injustice for this and delays in the EHCP process.

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Agreed action

37. Within one month of the date of my decision, the Council have agreed to pay Mrs X;
• £500 for the uncertainty and avoidable distress caused by delays in finalising Y’s EHCP;
• £100 for Mrs X’s time and trouble caused by poor communication.
38. Furthermore, once the SEND Tribunal have determined the SEP that Y would have been due for December to June, the Council have agreed to consider the consequences of the delays to Y. In doing so it should consider whether it should make a further offer of a remedy in line with our guidance for missed provision.
39. The Council have agreed to provide us with evidence it has complied with the above actions.

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Final decision

40. There was fault.

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Investigator's decision on behalf of the Ombudsman