Summary: Mr and Mrs B say the Council delayed holding a meeting following its refusal to carry out an EHC needs assessment for their daughter, delayed completing the assessment and the EHCP following tribunal, misled them, failed to communicate effectively with them and unreasonably refused to take their complaint to stage two. The Council delayed holding a meeting and in completing the needs assessment and EHCP following tribunal. The Council also failed to respond to some communications, delayed providing Mr and Mrs B with a form and was at fault for failing to take the complaint to stage two. An apology, payment to Mr and Mrs B and training for officers is satisfactory remedy.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs B, complained the Council:
• delayed the decision to refuse to carry out an education, health and care needs assessment (EHC needs assessment) and in arranging a meeting following that;
• delayed completing the EHC needs assessment following tribunal and in issuing an education, health and care plan (EHCP);
• misled them about whether the Council would complete section A during the needs assessment;
• failed to communicate effectively with them; and
• unreasonably refused to consider their complaint about delays at stage two.
2. Mr and Mrs B say failures by the Council have led to their daughter missing out on special educational needs provision and has caused them significant distress.

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The Ombudsman’s role and powers

3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
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)

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Mr and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mr and Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments 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

What should have happened

9. Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (code of practice) sets out the process for carrying out EHC assessments and producing EHCPs. The code of practice is based on the Children and Families Act 2014 and the Special Educational Needs Regulations 2014 (SEND regulations). 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; and
• the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks.
10. As part of the EHC assessment councils must gather advice from relevant professionals. This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an educational psychologist (EP).
11. Those consulted have six weeks to provide the advice.
12. Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made in accordance with an EHCP, the local authority must prepare a plan. Where a local authority decides it is necessary to issue an EHCP, it must notify the child’s parent or the young person and give the reasons for its decision. The local authority should ensure it allows enough time to prepare the draft plan and complete the remaining steps in the process within the 20-week overall time limit within which it must issue the finalised EHCP.

What happened

13. Mr and Mrs B had previously requested an EHC needs assessment for their daughter, which the Council had refused. In 2021 though Mr and Mrs B’s daughter was diagnosed with autistic spectrum disorder and Mr and Mrs B approached the Council on 23 June 2021 to ask for an EHC needs assessment. The Council’s special educational needs panel considered the request on 3 August and refused an assessment. The Council notified Mr and Mrs B of that decision in writing. The Council also gave Mr and Mrs B the option of attending a meeting to discuss a way forward, which Mr and Mrs B accepted. That meeting took place on 24 September. The Council wrote to Mr and Mrs B following the meeting to refuse their request for an EHC needs assessment.
14. Mr and Mrs B appealed that decision. On 1 April 2022 the tribunal ordered the Council to begin an EHC needs assessment.
15. The Council began the EHC needs assessment on 24 April.
16. On 26 April, following a telephone conversation with the caseworker, Mr and Mrs B emailed the Council to raise concerns that they had been told the Council no longer completed section A of the EHCP as part of the needs assessment. Mr and Mrs B asked for clarification about that. Mr and Mrs B chased the Council for a response on 5 and 10 May and then escalated their concerns to the head of special educational needs on 15 May.
17. The Council contacted Mr and Mrs B’s on 6 June to tell them there would be a delay allocating an educational psychologist to visit their daughter due to staffing difficulties. The Council explained the educational psychologist service had said it would visit in July. That visit though did not take place until September.
18. The Council received some advice from the speech and language therapist on 15 July and made a referral for a full assessment on 9 August.
19. Mr and Mrs B raised concerns about the delays and put in a complaint on 17 July, which the Council responded to on 23 August. Mr and Mrs B told the Council they were not happy with the response and asked for the complaint to go to stage two. The Council said it was not appropriate to do that while Mr and Mrs B were still waiting for the outcome of the EHC needs assessment.
20. The Council chased the speech and language therapist in September and it became clear there was some confusion about the area responsible for carrying out the assessment given Mr and Mrs B’s daughter attended a school outside the Council’s area. That was clarified at the beginning of October.
21. A new caseworker took over the case at the end of September and met with Mr and Mrs B.
22. The Council received an educational psychology report on 7 October and updated advice from speech and language therapist on 12 October.
23. On 2 November the Council agreed to issue an EHCP with 10 hours of support. The Council has now issued a draft EHCP.

Analysis

24. Mr and Mrs B say the Council delayed refusing to carry out an EHC needs assessment for their daughter. Under the code of practice, referred to in paragraph 9, the Council is required to tell parents about whether it will complete a needs assessment within six weeks of receiving a request. Mr and Mrs B requested a needs assessment on 23 June 2021. The evidence I have seen satisfies me the Council issued a decision refusing to carry out a needs assessment on 3 August 2021. That is within the six-week timescale set out in the code of practice. I therefore do not consider the Council at fault here.
25. In reaching that view I recognise the Council sent another letter rejecting the request for a needs assessment in September 2021 following a meeting with Mr and Mrs B. However, I am satisfied the notification of the decision on 3 August 2021 provided Mr and Mrs B with the opportunity to appeal and it was their choice to pursue a meeting with the Council instead. I therefore do not consider the Council delayed making a decision on the request for a needs assessment. However, the Council was at fault for not holding the meeting until 24 September 2021, which added in an additional six week delay.
26. Mr and Mrs B say the Council delayed completing an EHC needs assessment and in issuing a final EHCP following tribunal in 2022. The Council accepts there have been delays here. I am not able to comment on any delays during the tribunal process as once an appeal is submitted the period from the point at which the appeal is submitted to the date of the tribunal decision is outside the Ombudsman’s jurisdiction.
27. The evidence I have seen satisfies me the appeal proceedings completed on 1 April 2022. However, as of the Council’s response to my enquiries on 30 November 2022 it had still not issued an EHCP and it did not tell Mr and Mrs B it intended to issue an EHCP until 2 November. Under the code of practice, which I refer to in paragraph 9, the Council has 20 weeks to complete the process from the point at which a request for an EHC needs assessment is received to the point at which a final EHCP is issued.
28. As I said earlier, for the first part of the process the Council has six weeks to decide whether to complete a needs assessment. In this case that six weeks concluded on 1 April 2022 when the tribunal directed the Council should complete a needs assessment. The Council therefore had 14 weeks from that point to complete a needs assessment, tell Mr and Mrs B whether it intended to issue an EHCP and then issue any EHCP. It is clear the Council failed to meet that timescale because as of its response to my enquiry in November 2022 the Council had still not issued a draft, let alone a final, EHCP and only told Mr and Mrs B on 2 November it intended to issue an EHCP. Failure to adhere to the timescales in the code of practice is fault.
29. I am also concerned the process has been lengthened by confusion over who to approach for a speech and language therapy assessment. Although the Council should have issued the final EHCP before the end of term in July 2022 due to that confusion the formal assessment was not requested until October 2022. There were then also delays when the educational psychologist could not meet with Mr and Mrs B’s daughter to complete the assessment until September 2022. I recognise the latter was outside the Council’s control. However, the Council is responsible for ensuring the process is completed within the timescales set out in the code of practice. Failing to do that is therefore fault.
30. As I do not yet have a copy of the EHCP I cannot be clear about provision that plan will include. However, I have a copy of the EHC needs assessment which sets out some provision. The Council’s file notes also refer to the plan providing 10 hours of support. It is therefore clear delay completing the process means Mr and Mrs B’s daughter has missed out on special educational needs provision from September 2022 to the point at which the final EHCP is issued and the provision put into place. Taking into account the level of support I have information about and the fact the school had some support in place for Mr and Mrs B’ daughter I consider an appropriate remedy would be for the Council to pay Mr and Mrs B £200 for each month their daughter missed out on special educational needs provision from September 2022. I further recommended the Council pay Mr and Mrs B £300 to reflect the fact the process was delayed by a further six weeks due to the delay holding a meeting in September 2021. I also recommended the Council pay Mr and Mrs B an additional £250 to reflect the impact the delays had on them and the time and trouble they had to go to pursuing their complaint. The Council should also provide training to officers dealing with EHCPs to ensure they are aware of the need to comply with the timescales set out in the code of practice. The Council has agreed to my recommendations.
31. Mr and Mrs B say the Council misled them about whether the Council would complete section A as part of the EHC needs assessment. Mr and Mrs B say although the process document the Council provided them with indicated section A would be completed they were later told by the caseworker the Council no longer did that. I do not have a recording of the telephone conversation Mr and Mrs B refer to and there is no documentary evidence from that phone call either. I am aware though Mr and Mrs B emailed the Council shortly after the telephone call where they refer to what was said. The only record from the caseworker’s point of view does not refer to any discussion about section A but does refer to her telling Mr and Mrs B during the telephone call that the Council no longer completed a draft EHCP as part of the needs assessment. In the absence of any recording of the telephone call I cannot reach a safe conclusion about what was said and whether Mr and Mrs B were misled. I consider though this is a matter that could have been cleared up by the Council if it had responded to the various emails Mr and Mrs B sent about it in April and May 2022.
32. Mr and Mrs B say the first caseworker allocated to their daughter’s case failed to communicate effectively with them. The evidence I have seen satisfies me the Council did not respond to some of Mr and Mrs B’s communications in April and May 2022 about the issues relating to section A. Failure to respond to Mr and Mrs B is fault. There is also evidence the Council failed to provide Mr and Mrs B with the parental review form following tribunal. The evidence I have seen satisfies me the Council did not provide Mr and Mrs B with that form until a new caseworker took over the case. That is also fault. I recommended the Council apologise to Mr and Mrs B for those failures and ensure officers are aware of the process to follow when completing an EHC needs assessment. The Council has agreed to my recommendations.
33. For the way the Council dealt with Mr and Mrs B’s complaint the Council accepts the initial complaint response could have been more in-depth and that it should have accepted where it had identified fault. I welcome that. I am concerned though the Council refused to take the complaint to stage two until the EHCP process had been completed. The evidence I have seen satisfies me the Council refused that request as it did not consider it appropriate to consider the complaint while the outcome of the EHCP process was not completed. I am concerned about that decision. Mr and Mrs B were complaining about the delay in the EHCP process. I see no reason why the Council could not have considered the complaint about the delay while the process was continuing. Failure to respond to the complaint at stage two is therefore fault.

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Agreed action

34. Within one month of my decision the Council should:
• apologise to Mr and Mrs B;
• pay Mr and Mrs B £200 for each month of missed special educational needs provision from September 2022 to the point at which the Council issues a final EHCP and confirms with the school that the provision is in place;
• pay Mr and Mrs B £300 to reflect the six week delay holding a meeting in September 2021 as that has extended the period Mr and Mrs B’s daughter is without special educational needs provision;
• pay Mr and Mrs B £250 to reflect their distress and time and trouble pursuing the complaint;
• issue a final EHCP if it has not already done so; and
• remind officers dealing with complaints to ensure they do not prevent a complaint about delay going forward until the process that is the subject of the delay is completed.
35. Within two months of my decision the Council should carry out training for officers dealing with EHCPs to ensure they are aware of the need to comply with the timescales set out in the code of practice and of the requirements during the EHC needs assessment.

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Final decision

36. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman