Summary: Ms X complains the Council wrongly refused to provide her with an Education Health and Care Plan, and then failed to provide appropriate support for her to appeal this decision. The Council’s failure to carry out an assessment of Ms X’s needs within the required timeframe amounts to fault. As does the failure to provide appropriate advice and support to submit an appeal. These faults have caused Ms X an injustice.

The complaint

1. The complainant, whom I shall refer to as Ms X complains the Council wrongly refused to provide her with an Education Health and Care Plan, and then failed to provide appropriate support for her to appeal this decision. Ms X complains the Council referred her to a charity who failed to support her or submit her appeal to the tribunal.

Back to top

The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a council’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)
4. 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. Once the person has appealed we have no discretion and cannot investigate. (Local Government Act 1974, section 26(6)(a), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)).
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. 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.

Back to top

How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and the documents provided by Ms X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Ms X;
• Ms 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

Education, Health and Care Plans

9. A child or young person with special educational needs (SEN) may have an Education, Health and Care Plan (EHC Plan). This sets out the young person’s needs and what arrangements should be made to meet them. Young people between 19 and 25 can request an EHC assessment even if they never had a Plan before.
10. Councils must respond to all requests for an EHC Plan. They must decide whether an assessment is needed within six weeks of receiving the request.
11. If a council refuses to carry out an assessment, the decision can be appealed to the Special Educational Needs and Disability (SEND) tribunal (the tribunal). Where the tribunal makes an order requiring the council to carry out an assessment, the council must inform the parent or young person of its decision on whether to issue an EHC plan within 10 weeks of the date of the tribunal’s order. (The Special Educational Needs and Disability Regulations 2014, section 44.)

Funding places for 19 – 25-year-olds

12. The SEND Code of Practice states that 19- to 25-year-olds with EHC plans should have free access to further education in the same way as 16- to18-year-olds. Colleges or training providers must not charge young people tuition fees for such places as the funding will be provided by the council and the Education and Skills Funding Agency (ESFA).
13. The Code also states 19- to 25-year-olds with SEN but without EHC plans can choose to remain in further education. Colleges are funded by the ESFA for all students aged 19 and over who do not have an EHC plan. Colleges are able to charge fees for these students but must use their best endeavours to secure the necessary special educational provision that they need. Councils are not responsible for securing or funding education and training opportunities for young people aged 19 to 25 who do not have EHC plans.

What happened here

14. Ms X was struggling to complete her college course. She had fallen behind on her work and would be unable to meet her end of year deadlines. In July 2018, with the assistance of an advocate from Charity 1, Ms X asked the college for an extension on her course. She also asked the Council for an assessment of her special education needs. Ms X was 23 at this time. This was the second time she had asked the Council to assess her special education needs. The Council had refused her request a year earlier.
15. The Council again refused to carry out an assessment so, with the assistance on an advocate from Charity 1, Ms X appealed to the tribunal. Ms X and her advocate also attended a meeting with the college and the Council to discuss extending her course and the support she would need. The advocate’s subsequent correspondence with the Council states the college confirmed at this meeting it would offer a one-year extension but would not waive the tuition fees for that year. The advocate states the college was also happy to support Ms X as long as she was supported to access the college and complete her home assignments. They also noted Ms X would need transport to access the college. Ms X’s advocate then left Charity 1 in September 2018.
16. In December 2018 the tribunal ordered the Council should carry out an assessment. Where the tribunal orders a council to start an assessment, the council must write to the young person within two weeks to say they will make the assessment.
17. The Council wrote to Ms X in January 2019 to advise it would start the assessment and that an EHC co-ordinator would contact her shortly. The Council advised it would decide within 16 weeks of the date Ms X requested an assessment whether she was eligible for an EHC plan. If she was, it would issue a draft plan by 24 April 2019 and a final plan by 22 May 2019.
18. In May 2019 the Council wrote to Ms X to advise it had decided not to issue an EHC Plan. The Council considered Ms X’s needs could be met by the college. Ms X was unhappy with the Council’s decision as she had not been able to attend college since the previous Spring and was unable to return without an EHC Plan. Ms X states the Council’s EHC assessment documents shows the Council was aware she would need support to complete her course. She asserts that without an EHC plan, which funded the course fees, she was unable to re-enrol on her course or access any support.
19. Ms X states the Council told her to contact the SEND Information Advice and Support Service (SENDIASS) at Charity 1. She states she eventually got an appointment with a trainee worker at Charity 1 who began helping her appeal the Council’s decision. This person then left Charity 1 in July 2019 and Ms X states her case was passed to someone else. Ms X had no contact from Charity 1 over the summer and was told in September 2019 that the Charity had not followed up on her appeal and the deadline had now passed. Charity 1 suggested Ms X request a new EHC Plan assessment, but Ms X did not consider this a realistic option as she would shortly be 25 years old and no longer eligible.
20. Ms X made complaints to both the Council and Charity 1. In its response Charity 1 explained that it had had a contract with the Council to provide long-term casework advocacy services until September 2018. The service was then taken over by another charity. Charity 1 understood Ms X’s advocate had explained this to her when she left.
21. Charity 1 suggested Ms X had misunderstood the SENDIASS advice worker’s role and was under the impression they would be able to provide the same type of ongoing support the advocate had. The SENDIAS service at Charity 1 does not provide advocacy services but is set up to offer a telephone helpline, advice surgeries and training courses to provide information and advice about SEND processes.
22. Charity 1 acknowledged that due to an unfortunate combination of staffing changes and shortages Ms X had not received a consistent timely service and apologised for this. Ms X remained unhappy Charity 1 had missed her appeal deadline and not signposted her to other services who could have supported her needs.
23. In her complaint to the Council Ms X asserted the Council had delayed in beginning her assessment following the tribunal’s decision and questioned whether it had considered the supporting information she had provided. Ms X felt the Council had procrastinated and prevented her from receiving the support she needed until she was no longer eligible for an EHC Plan.
24. The Council’s response noted it received the tribunal’s decision on 19 December 2018 and that the start date for the EHC assessment was 7 January 2019. It apologised for not contacting Ms X as part of the process until February 2019. The Council also noted that the assessment needed to be completed within 20 weeks and that it had issued the assessment document on 7 May 2019, within this timeframe. It stated the error in not informing Ms X of the assessment in a timely way did not delay the overall process.
25. The Council confirmed it had checked the information used to write the assessment document and all of the information requested was listed. Ms X was not satisfied by the Council’s response and asked for her complaint to be reviewed. She also complained that although the Council knew she needed advocacy support, it had not informed her that Charity 1 no longer provided this service. Or that a new charity had taken over this service.
26. Having reviewed the complaint, the Council reiterated it considered the college could provide adequate support without additional funding through an EHC Plan. It also suggested that if the college felt its resources were not enough it could request additional funding via a High Needs top up.
27. As Ms X remains dissatisfied, she has asked the Ombudsman to investigate her complaint. In response to my enquiries the Council states it directs parents and young people to the appropriate services before, during and after the EHC Needs Assessment process. The Council commissions Charity 1 to offer advice, information and support to parents/ cares and young people in Haringey with SEND. It enclosed a copy of Charity 1’s leaflet in its correspondence to Ms X. The Council states it does not get involved in how Charity 1 operates and transacts with their clients.

Analysis

28. Legislation and Government guidance set out a clear procedure and timeframe for assessing a child or young person’s special educational needs and where appropriate issuing an EHC Plan. It is therefore of concern that the Council has not only failed to meet this timeframe, but also that its references to the timeframe are incorrect.
29. The Council has advised Ms X of differing timeframes for completing her needs assessment. In January 2019 the Council advised Ms X it would decide within 16 weeks of her request whether she was eligible for an EHC Plan. In response to her complaint it then stated it had complied with the timeframe as it had issued the assessment document within 20 weeks of the tribunal decision. Neither of these timeframes is correct. The Special Educational Needs and Disability Regulations 2014 require the Council to inform Ms X of its decision on whether to issue an EHC Plan within 10 weeks of the tribunal’s order. That would have been by 27 February 2019. The Council did not inform Ms X of its decision until 13 May 2019.
30. The failure to comply with, or to be aware of, the 10-week timeframe amounts to fault.
31. I also consider there to be fault in the advice and support provided to Ms X. The Council has a duty to provide information, advice and support to children and young people with SEN. The Council commissions Charity 1 to provide this service on its behalf. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.
32. It is clear from the documentation, and Charity 1 acknowledges, that there were failings in the service Charity 1 provided to Ms X. Charity 1 no longer offers an advocacy service, but it had begun supporting Ms X in preparing an appeal to the tribunal. Due to staff turnover and sickness this support was inconsistent, and the appeal documentation was not completed. These failings meant Ms X was unable to submit her appeal within the required timeframe.
33. Having identified fault, I must consider whether this has caused Ms X a significant injustice.
34. The delay in carrying out a needs assessment and in notifying Ms X the Council would not issue an EHC Plan would have caused Ms X frustration and disappointment. As will the failure to support her, and the loss of opportunity to appeal the Council’s decision not to issue an EHC Plan.
35. I recognise that without an EHC plan to fund her course Ms X has not been able to return to college and note Ms X states this inability to complete her education has exacerbated her existing mental health problems and had a significant impact on her health and wellbeing.
36. But I cannot say that either the delay or the lack of support have prevented Ms X from returning to college with support under an EHC Plan. I cannot speculate, and it is not now possible to test, what the outcome of the tribunal hearing would have been had Ms X been able to submit an appeal. It is possible the tribunal would have allowed Ms X’s appeal, but equally, it may have preferred the Council’s submissions. In the circumstances Ms X is left with the uncertainty of not knowing whether her appeal would have been successful and whether she would have received an EHC Plan.

Agreed action

37. The Council has agreed to apologise to Ms X and pay her £200 in recognition of the distress, frustration, and uncertainty she experienced a result of the Council’s actions.
38. The Council should take this action within one month of the final decision on this complaint.
39. In addition, the Council has agreed to provide reminders/training to ensure that staff understand the statutory timeframes for EHC assessments and plan development. Particularly, the timeframes to be met when carrying out assessments ordered by tribunals.
40. The Council should take this action within two months of the final decision on this complaint.

Back to top

Final decision

41. The Council’s failure to carry out an assessment of Ms X’s needs within the required timeframe amounts to fault. As does the failure to provide appropriate advice and support to submit an appeal. These faults have caused Ms X an injustice.

Back to top

Investigator's decision on behalf of the Ombudsman