Summary: Miss Z complains about the actions of the Council when she requested an Education Health and Care assessment for her son, Y. We find fault because the Council took eleven months to notify Miss Z of its decision not to assess Y. The Council also took seven months to respond to Miss Z’s complaint. This fault caused injustice because it frustrated Miss Z’s right of appeal. The Council will remedy the injustice with the actions list at the end of this statement.

The complaint

1. Miss Z complains the Council did not formally respond to a request to assess her son, Y, for an Education, Health and Care Plan (EHCP). She says the Council told her by telephone that it had declined to assess Y, but this was not followed up in writing to provide her right of appeal.
2. Miss Z also says that Y’s school did not have an opportunity to submit supporting information because the Council made its decision before the deadline date.
3. Miss Z also complains the Council has not responded to her contact about the matter and did not respond to the formal complaint she submitted in August 2022.

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What I have and have not investigated

4. I have not investigated the complaint outlined in paragraph two. This is because any disagreements about whether the Council’s refusal to assess was correct and evidence based is a matter for the Tribunal to consider as part of Miss Z’s appeal.

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The Ombudsman’s role and powers

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. 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)
6. 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)
7. 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)

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How I considered this complaint

8. I considered the information provided by Miss Z and attempted to contact her by telephone to discuss the complaint.
9. I made enquiries of the Council and considered its response alongside the relevant regulations and guidance.
10. I issued my findings in a draft decision and invited comments from Miss Z and the Council to be considered before I make a final decision.
11. 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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What I found

What should happen

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 EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says councils must give a decision within six weeks of receiving a request for an EHC needs assessment.
13. 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 EHCP. 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 EHCP has been issued.

Background of key events

14. In April 2022 Miss Z formally requested an EHC assessment for her son, Y.
15. On 15 June the Council wrote to Z’s school confirming its decision not to proceed with an EHC assessment for Y.
16. Miss Z contacted the Council in July seeking an update about Y’s case. An internal email between Council officers sent on 12 July says, “Mum has not received the decline to assess letter and I can’t see one ever being created in [Y’s] file…. I can see the school decline letter in pupil file but no parental letter”.
17. Miss Z submitted a complaint which the Council acknowledged on 3 August 2022. Miss Z did not receive a response, so she contacted the Council in January 2023 for an update. The officer responding apologised to Miss Z and agreed to escalate her complaint to a manager.
18. The Council responded to Miss Z’s complaint on 8 March 2023: seven months after submission. It upheld Miss Z’s complaint about the failure to notify her of the June 2022 decision not to assess Y:
19. “The SEND Integrated Assessment Team fulfilled their statutory responsibilities to consider the EHC Assessment within a maximum of six weeks and no limited exception to this. However, as the determination was not to secure an EHC Needs Assessment, notification must be given under section 36 (5) and the reasons given. When making this notification, the local authority must also notify the child’s parents or the young person of their right of appeal of that decision. (SEN Reg 5 (3). The local authority failed to provide this which I profusely apologise for and has been addressed with the team involved”.

Was there fault causing injustice to Miss Z and Y?

20. The Council has already accepted that it failed in its statutory duty to notify Miss Z of its decision not to assess Y. Based on the evidence we have seen, the Council also failed to respond to Miss Z’s corporate complaint within 20 working days as per its published complaints procedure. This is despite Miss Z contacting the Council for an update and assurances made by the Council to respond to her complaint.
21. The delay in issuing the SEND notification and the further delay in responding to the complaint meant that Miss Z did not have a formal written record of the Council’s decision and was unable to appeal at the time. The Council issued the parental notification on 8 March 2023, nine months after making its decision not to assess Y. The statutory timescale is six weeks.
22. The actions of the Council considerably delayed Miss Z’s right to appeal. Miss Z has expressed concerns about the timescales and the impact this may have on Y’s transition to secondary school which she feels will be dependent on the appeal outcome.
23. We cannot speculate what the outcome of Miss Z’s appeal will be, however we can say with certainty that Miss Z has suffered an injustice because of time, trouble and frustrated appeal rights. The Council has agreed to acknowledge this with the actions listed in the section below.

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Agreed action

24. Within four weeks of my final decision, the Council will:
• Pay £300 to Miss Z in recognition of her time and trouble and her frustrated appeal rights.
25. Within eight weeks of my final decision, the Council will provide evidence to show it has:
• Reminded relevant officers, either through staff training or a briefing paper, of the requirement to issue decision notifications to parents as per its statutory duty under Regulation 5(3) of the Special Educational Needs and Disability Regulations 2014.

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Final decision

26. We have completed our investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions listed above will provide an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman