Summary: Mr X complained about delays and other errors in the Education, Health and Care assessment process for his son, Y. There was fault in how the Council prepared Y’s Education, Health and Care plan and responded to Mr X’s complaint. This caused Mr X avoidable inconvenience, frustration, time and trouble, for which the Council agreed to apologise and pay a financial remedy. It also agreed to remind staff about the importance of properly considering comments on draft Education, Health and Care plans.

The complaint

1. Mr X complains about delays and other errors in the Education, Health and Care assessment process for his son, Y. He says the Council failed to complete the assessment within the required timescales and failed to properly consider both his and Y’s school’s comments when producing the plan. As a result, he says the first plan did not properly meet Y’s needs and there were delays in arranging suitable provision for him.
2. He also complains the Council failed to secure the provision named in the plan and failed to respond to his complaint properly.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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)

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How I considered this complaint

6. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered all comments I received before making a final decision.
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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What I found

Education health and care plans

9. 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.
10. 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.
11. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
12. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

What happened

13. Mr X’s son, Y, has special educational needs related to a diagnosis of autism spectrum disorder.
14. Y’s school asked the Council to assessed Y’s Education, Health and Care (EHC) needs on 25 June 2021 and the Council agreed to carry out the assessment in early July 2021.
15. In mid-July the Council requested advice from the required agencies, and from the local Occupational Therapy (OT) service. Over the next two months the Council received advice from some of the agencies and it chased the outstanding information.
16. The Council received advice from its Educational Psychology service in late September 2021 and again chased the local OT service in early October 2021. A few days later, the Council decided it needed to issue an EHC plan for Y.
17. The Council received the outstanding OT advice in early December 2021 and it sent a draft EHC plan to Mr X and Y’s school for comments the following day.
18. Mr X sent his comments to the Council in mid-December 2021. He told the Council he was concerned that the 20 hours of one-to-one support the Council had included in the plan was not enough to meet Y’s needs taking into account the recommendations of both the Educational Psychology and Occupational Therapy reports.
19. Y’s school sent its comments to the Council a few days later. It provided a breakdown of how much time it would need to provide all the support in the plan and that this would need more than the 20 hours the Council had included.
20. The Council issued the final EHC plan for Y on 21 January 2022. The final plan was unchanged from the draft plan Mr X and the school had commented on.
21. Mr X complained to the Council the following day that the Council had ignored both his and the school’s comments on the draft plan and there was not enough support to meet Y’s needs.
22. The Council issued an amended draft EHC plan in early February 2022. This included some changes to how the plan described Y’s needs and how school staff should support him. The most significant change was an increase in one-to-one support from 20 to 32.5 hours a week. Mr X was happy with the changes the Council made and the Council issued an amended final EHC plan for Y in early March 2022.

My findings

23. The Council received the request for Y’s EHC assessment on 25 June 2021. Therefore, since it decided to make an EHC plan, it should have issued the final plan by 11 November 2021. However, it did not issue the final plan until 21 January 2022; 10 weeks late.
24. This was mainly due to delays in receiving the necessary advice and information from the Council’s Educational Psychology service. In its response to my enquiries, the Council said this was caused by a national shortage of qualified staff and an increase in the numbers of children needing assessments.
25. While I acknowledge the pressures the Council faced and the efforts it continues to take to improve the situation, the regulations required the Council to provide the necessary advice within six weeks and issue the plan on time. I am satisfied the Council’s inability to do so amounted to service failure and was therefore fault.
26. There is no evidence to show that the Council properly consider Mr X’s or Y’s school’s comments on the first draft EHC plan. Both sets of comments clearly explained why Mr X and Y’s school believed that the proposed 20 hours of one-to-one support was not enough to deliver the rest of the proposed plan. The Council has not provided any evidence of how it considered these comments or that it explained to Mr X why it did not think it needed to make any changes to the draft plan.
27. When Mr X said he would appeal the content of the plan, the Council decided to review the plan, including increasing the one-to-one support to 32.5 hours. There is no evidence Mr X provided any substantially different evidence or comments from those he originally provided on the first draft plan. Therefore, I am satisfied the Council failed to properly consider his comments initially and, if it had done so, it likely would have included more one-to-one support in the first final plan.
28. However, the delays in agreeing the final level of one-to-one support did not cause an injustice to Y. Mr X said that Y’s school continued to provide good support to Y throughout the EHC process, though not all of this was fully funded by the Council until it issued the amended final plan.
29. I am satisfied the failure to properly consider his comments caused Mr X avoidable frustration and inconvenience, since he needed to further pursue his complaint with the Council.
30. I am also satisfied there were delays with the Council’s handling of Mr X’s complaint. The Council has explained this was also due to staffing issues which it is trying to resolve. While I accept the Council’s explanation of the difficulties it is facing, I am still satisfied that the delays in investigating Mr X’s complaint represented a further service failure which caused Mr X avoidable time and trouble.

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Agreed action

31. Within one month of my final decision the Council will apologise to Mr X and pay him £200 to recognise the frustration, inconvenience, time and trouble caused by the fault I have identified.
32. Within three months of my final decision the Council will remind relevant staff of the importance of fully considering comments on draft EHC plans, adequately recording their considerations, and explaining to parents why it intends to make, or not make, changes as a result of any comments.

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Final decision

33. I have completed my investigation. There was fault in how the Council prepared Y’s EHC plan and responded to Mr X’s complaint. This caused Mr X avoidable inconvenience, frustration, time and trouble, for which the Council agreed to apologise and pay a financial remedy. It also agreed to remind staff about the importance of properly considering comments on draft EHC plans.

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Investigator's decision on behalf of the Ombudsman