Summary: Mrs X complained about delays in the Council’s Education, Health and Care needs assessment process regarding her child, Y. She also complained about the Council’s poor communication. The Council was at fault for delays in the process and for poor communication. The Council agreed to pay Mrs X a symbolic payment of £500 to recognise the frustration caused by the faults.

The complaint

1. Mrs X complained the Council:
• delayed completing an Education, Health and Care needs assessment for her child, Y;
• delayed sending Y’s final Education, Health, and Care plan; and
• failed to communicate with her effectively about the EHC process.
2. Mrs X says this caused her avoidable frustration and meant Y did not receive all the education and support they needed.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
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. 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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What I have and have not investigated

7. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). These restrictions apply from the date the appeal right arose to the date the appeal was completed.
8. Mrs X appealed the Council’s decision not to complete an EHC needs assessment of Y to the SEND Tribunal. As such, I cannot investigate matters about Y’s EHC needs assessment between September 2022 when Mrs X’s right of appeal arose, to early March 2023 when the SEND Tribunal made its order.

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How I considered this complaint

9. I spoke with Mrs X and considered information she provided.
10. I considered information provided by the Council.
11. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Law and legislation

Education Health Care needs assessment

12. A child with special educational needs (SEN) 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. In order to have an EHC plan, a child must first have an assessment.
13. 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;
• if the council decides to carry out an assessment, it should do so “in a timely manner”; and
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice;

14. 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 EHC plan. 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 EHC plan has been issued.

Compliance with the SEND Tribunal’s order

15. The Council must comply with the orders of the SEND Tribunal. There are different timescales depending on the circumstances of the appeal.
16. If the SEND Tribunal orders a Council to complete an EHC needs assessment, the Council must write to the parent or carer of the child within two weeks of the Tribunal and inform them it will complete the assessment.
17. If after completing its assessment the Council decides it is necessary to make an EHC plan for a child, it must send the finalised plan no later than 14 weeks of the Tribunal’s order.

Background

18. Mrs X has a child, Y, who attended a school in the Council’s area. In July 2022 Mrs X asked the Council to complete an EHC needs assessment of Y. The Council decided not to assess Y and sent Mrs X its decision nine weeks later in early September 2022. In October 2022, Mrs X appealed the Council’s decision not to assess Y to the SEND Tribunal.
19. In early December 2022, the Council wrote to Mrs X and said it decided to complete an EHC needs assessment for Y. However, it did not inform the Tribunal of its decision.
20. The Council wrote to relevant professionals and requested reports to enable it to complete an EHC needs assessment of Y. It asked for all reports to be provided by mid-January 2023.
21. In early February 2023 the Council’s educational psychology service wrote to the Council’s SEND service and said there would be a delay in completing a report of Y’s needs due to limited capacity.

Tribunal order

22. In early March 2023 the Tribunal ordered the Council to complete an assessment of Y’s SEND.
23. An educational psychologist completed an assessment of Y’s needs shortly after and sent their report to Mrs X and the Council’s SEND team.

Mrs X’s stage one complaint and the Council’s stage one response

24. In late April 2023 Mrs X complained to the Council. She said there were delays in completing the EHC process and she did not know the outcome of Y’s EHC assessment. She also complained she had tried to contact the Council to discuss the matter but had been unable to do so.
25. The Council’s SEND team wrote to Mrs X in early May 2022 and apologised for the continued delay in deciding whether to issue an EHC plan for Y. It said it could not provide a timescale for making its decision but would inform her as soon as possible.
26. The Council responded at stage one of its complaints process in mid-May 2023. The Council:
• upheld Mrs X’s complaint and apologised for any distress caused by the delay in the EHC process;
• told Mrs X it had a high number of EHC needs assessment requests, which was causing delay;
• said there was a shortage of educational psychologists which also contributed to the delay; and
• explained it had recruited more officers to its SEND department improve its service.

Mrs X’s stage two complaint and the Council’s stage two response

27. Mrs X responded to the Council several days later. She said the Council received the educational psychologist’s report in early March 2023 and requested the Council consider her complaint at stage two of its process.
28. The Council responded at stage two of its process in late June 2023. It said:
• it had asked the educational psychologist to provide their report by mid-January 2023, but they did not do so until early March 2023. Therefore, this contributed to the delay in completing Y’s EHC needs assessment; and
• it would decide whether to make an EHC plan for Y by mid-July 2023.
29. In early July 2023, the Council said it received a Speech and Language report regarding Y.
30. Mrs X wrote to the Council in mid-July 2023 and requested an update. The Council responded several days later and told her it had considered the information and decided to make an EHC plan for Y. It sent Mrs X a copy of Y’s draft EHC plan for her comments.

Final EHC plan

31. The Council considered Mrs Y’s comments on the draft EHC plan and made a final EHC plan for Y in late September 2023.

Mrs X’s complaint to the Ombudsman

32. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.
33. In response to my enquiries, the Council said:
• it acknowledged there was a delay in completing Y’s EHC needs assessment and in issuing Y’s final EHC plan;
• it was sorry for failing to communicate with Mrs X about Y’s EHC needs assessment; and
• explained steps it was taking to improve its service, including recruiting more SEND officers.

My findings

Original decision whether to complete an EHC needs assessment of Y

34. Mrs X asked the Council to conduct an EHC needs assessment for Y in early July 2022. The Council should have decided whether to complete an EHC needs assessment of Y within six weeks by mid-August 2022. It did not do so until early September 2022. This was a three-week delay and was fault. The fault caused Mrs X frustration and delayed her right of appeal to the SEND Tribunal.

EHC needs assessment following SEND Tribunal

35. The SEND Tribunal ordered the Council to complete an EHC needs assessment of Y. The Council completed the assessment and decided to make an EHC plan for Y.
36. The Council should have made Y’s final EHC plan within 14 weeks of the SEND Tribunal’s order no later than mid-June 2023. It did not make a final EHC plan until 29 weeks later in late September 2023. This was 15 weeks of delay and was fault. The fault caused Mrs X frustration and uncertainty about the support Y may receive.

Communication

37. The Council accepted fault for failing to keep Mrs X informed about the progress of Y’s EHC needs assessment in 2023. The Council has already apologised for the fault, and this is sufficient to remedy any injustice caused.

Systemic delays in the Council’s EHC process

38. We have recently investigated several complaints about this Council regarding delays in the EHC process. The Council has provided us with evidence of improvements to its processes and services including but not limited to recruiting more SEND officers and educational psychologists to reduce its backlog of EHC decisions. Therefore, I will not make further recommendations here as the Council is already implementing appropriate changes to prevent recurrence of the faults.

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Agreed action

39. Within 4 weeks of the final decision, the Council agreed to:
• write to Mrs X and apologise for the frustration caused by the delay in deciding whether to complete an EHC needs assessment for Y in 2022;
• pay Mrs X a symbolic payment of £500 for the frustration caused by the delay in making Y’s final EHC plan; and
• write to SEND officers involved in the EHC process and remind them of the importance of maintaining communication with parents/ carers regarding any progress or delays.
40. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I completed my investigation. I found fault and made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman