Summary: Mrs X made two complaints about delay within the Education, Health and Care Plan process for her son. There was fault by the Council for significant delay in issuing a final Plan after an appeal and also in its handling of her second complaint. This caused a direct loss of provision to her son, in addition to time and trouble for Mrs X. The Council has agreed to provide Mrs X with an apology, a financial payment and to make service improvements to remedy the injustice caused.

The complaint

1. The complainant, whom I refer to as Mrs X, complained of significant delays by the Council in relation to her son’s Education, Health and Care Plan (EHCP), specifically:
1. In issuing a Plan after an appeal decision;
2. In responding to consultations received from other schools, which she said caused a gap in her son’s education; and
3. In providing a Stage Two response to a second complaint.
2. Mrs X said this resulted in missed provision for her son, whom I refer to as Y, as well as stress and anxiety for both of them due to not having the correct support in place for him.

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What I have investigated

3. I have investigated matters a) and c) above. At the end of this decision, I have set out why I have not investigated other matters.

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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. 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.
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

9. I discussed the complaints with Mrs X and considered her views.
10. I made enquiries of the Council and considered its written responses and information it provided.
11. I considered the SEND Regulations 2014, and the SEN Code of Practice 2015.
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.

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What I found

Law and Policy

Education, Health and Care Plans (EHCPs)

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. 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.
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. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP 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.
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 EHCPs. 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 EHCPs “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 EHCP 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 EHCP.
17. The Special Educational Needs and Disability Regulations 2014 say:
• If a council refuses to carry out an EHC assessment but then the SEND tribunal orders them to do so, then they must either decide not to issue an EHC plan within 10 weeks or issue a final EHCP within 14 weeks of the order. (Regulation 44(2)(b))
18. 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.
19. Those consulted have a maximum of six weeks to provide the advice.

What happened

20. Mrs X made two complaints to the Council:
• she first complained to the Council in February 2021, mainly about delay in issuing a final EHCP for Y after an appeal decision; and
• she raised a second complaint in August 2021 for additional concerns of delay relating to a school placement.
21. She made two complaints to the Ombudsman about each of the above and they were considered together under one case.

First complaint

22. In June 2020, Mrs X asked the Council to assess her son (Y) for an EHCP. The Council refused to assess in July.
23. In September, Mrs X appealed against this decision. In October, the Council notified the Tribunal it did not intend to oppose the appeal and agreed to carry out a statutory assessment.
24. In February 2021, Mrs X complained to the Council about:
1. delays in the assessment process; and
2. her intention to obtain an independent Occupational Therapy (OT) report and being told it would not be considered at the Council’s internal decision-making panel (Panel) as part of the assessment.
25. After receiving a Stage One response, Mrs X escalated the complaint and in April, the Council’s Stage Two review found:
1. the Council was at fault for not complying with statutory EHCP timescales; and
2. there was delay in the Council receiving OT advice after it was agreed it was needed for Y’s assessment, due to staffing issues. It accepted it should have commissioned an independent report when it had known about the delay.
26. The Council upheld her complaints and made a recommendation to notify the Clinical Commissioning Group of the concern that the OT service failed to fulfil its statutory cooperation duties. It also agreed to reimburse Mrs X’s costs for her independent OT report.
27. In April 2021, the Panel reviewed advice gathered for the assessment and concluded an EHCP should be issued for Y, recommending a mainstream school setting. On 14 April, a draft EHCP was sent.
28. Mrs X contacted the Council to say Y was struggling at his current school, School A, and her parental preference was for a High COIN (specialist centre for Communication and Interaction Needs) setting to suit Y’s needs and for School B to be consulted.
29. In May, this was considered at Panel and it upheld the previous recommendation for a mainstream school. Mrs X was dissatisfied and asked for the final Plan to be made so she could use her appeal rights.
30. On 26 May, the final EHCP was issued, stating Y should be placed at a state funded mainstream secondary school.
31. Mrs X appealed sections B (Y’s Special Education Needs), section F (Special Educational Provision needed), and section I (name and type of school where provision is to be delivered) of the EHCP.
32. The appeal concluded in December. During this period the Council consulted schools and its Panel considered Mrs X’s request for School B on two occasions. In August, it agreed to consult School B. It offered a place in October and Y started there in November 2021. In January 2022, the Council issued a final EHCP, naming School B.

Second complaint

33. In August 2021, Mrs X made a formal complaint to the Council about its delay in finding a suitable school for Y. Following two Stage One replies in September and October, it agreed on 30 October to start a Stage Two investigation and aimed to complete it by 3 December.
34. The Council took no further action until 6 April 2022 when it emailed Mrs X to say it would appoint an external independent consultant to investigate her concerns at Stage Two.
35. On 13 April, the Council said sourcing an independent consultant was a challenge and gave her the option to refer the complaint to the Ombudsman despite it not being heard at both stages of its complaint’s process; given the circumstances, it would support Mrs X in doing this.
36. On 22 April, Mrs X complained to the Ombudsman, adding that the Council had agreed to her request for Y to repeat Year 11 in September 2022, due to his struggle when attending School A and the Council’s delay in agreeing a suitable school for him. Y has attended School B since November 2021 and made positive progress; she wished for him to catch up on education he had missed and for him to retake his GCSEs.

Analysis

Delay in issuing Y’s EHCP

37. After accepting the decision to assess, a council must issue the final plan by 14 weeks. On 22 October 2020 the Council notified the Tribunal it would assess Y. A final plan should have been issued by 28 January 2021; a draft plan was issued 14 April, which was already a 10 week delay. The finalised plan was sent on 26 May, overall taking roughly 31 weeks, which is a delay of 16 weeks. The Council accepted fault for this in its complaint response to Mrs X; it did not meet the statutory deadline and I agree there was fault in its significant delay in issuing the final EHCP.
38. There was also delay with receiving responses from the OT as part of the assessment process. Professionals should respond within six weeks, in this case, for the OT by February 2021. This is a legal duty which must be complied with. The OT service informed the Council there would be a delay without providing a timeframe. The Council acknowledged it knew the deadline would not be met and should have acted on this; it upheld Mrs X’s complaint. I agree this was fault.
39. These delays caused injustice to Y as Mrs X had to wait substantially longer than necessary to receive a final EHCP which would enable provision to be put in place for his needs. This impacted Y as he missed out on extra support that he was entitled to between February and May 2021.

Delay in responding to consultation responses

40. After the final EHCP in May 2021, Mrs X used her right to appeal the type of placement named in the Plan, as well as Sections B and F. The Tribunal order for this was issued in December 2021, directing that changes were made.
41. Her second complaint about the Council not responding to consultation responses promptly was raised in August 2021, and I have noted the Panel agreed to change the placement in October but the appeal as a whole was ongoing at this point. I cannot comment on delay or loss of education for Y during this period, as it was linked to the placement which Mrs X challenged at appeal; therefore this part of her complaint is outside the Ombudsman’s jurisdiction to consider.

Complaint handling

42. Mrs X’s first complaint was made on 11 February 2021 and the Council did not respond at Stage One until 19 March, which was outside of the 10 working day timescale in its Complaints policy.
43. Its Stage Two response after Mrs X’s escalation request was timely, as was its Stage One response to Mrs X’s second complaint in August 2021.
44. While I cannot look at the substantive issues raised in the second complaint as it was linked to the matter of Y’s placement that was under appeal at the time; I can address the delay. I find the Council delayed excessively to meet Mrs X’s Stage Two escalation request raised on 27 September. Although the Council provided updates on proposed timescales, in April 2022, six months later, the Council suggested Mrs X take her complaint to the Ombudsman.
45. It gave reasons for delay due to: current volumes of complaints, an open vacancy of Senior Customer Relations SEN Officer, a shortage of external investigators with capacity to progress investigations at the second stage, and challenge to find internal officers with appropriate expertise.
46. I acknowledge these however this poor complaints handling is fault, and caused an injustice to Mrs X with additional frustration and her time and trouble in pursuing a properly considered response to her complaint.

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Agreed action

47. Although I agree with the Council’s findings at the time to Mrs X’s first complaint where it acknowledged fault and made a recommendation, in my view, this is not sufficient as it did not detail how this would improve its service. Additionally, taking into account previous Ombudsman’s decisions into the Council, I am not satisfied the Council has taken action to prevent recurrence of similar fault relating to SEN cases and it needs to do so as a priority, as outlined in Paragraph 50 below.
48. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
49. Within one month of the final decision:
• Provide Mrs X with a further written apology for the delays she experienced;
• Pay Mrs X £250 for her time and trouble in pursuing her complaints; and
• Pay Mrs X £600 in recognition of missed provision for Y caused by the Council’s delay in issuing the final EHCP between February and May 2021, intended to be used for Y’s educational benefit. I based this on a total delay of 13 weeks (to account for school holidays), calculated at £200 per month.
50. Within three months of the final decision:
• Review its processes to ensure it issues final EHC plans within statutory timescales and minimises delays, providing evidence this guidance has been sent to appropriate staff members;
• Review its processes on how it takes action when professionals miss deadlines in providing advice for the EHCP assessment process, providing evidence this guidance has been sent to appropriate staff members; and
• Identify what key steps it will take to ensure the Council improves its complaints handling, providing evidence of this.

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Final decision

51. I found the Council at fault which caused an injustice to Mrs X and Y. The Council has agreed with the recommendations to remedy this, and I have completed my investigation.

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Parts of the complaint that I did not investigate

52. In relation to part b) of Paragraph 1, I cannot investigate matters where Mrs X has exercised her right of appeal; this means from the period May 2021 when appeal rights arose from the issue of the final EHCP, to the end of the appeal in December 2021. I am also unable to investigate any matters inextricably linked to that appeal, which I have concluded applies here and explained further in Paragraph 41 above.

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Investigator's decision on behalf of the Ombudsman