Summary: Mrs X complained the Council delayed assessing and issuing her daughter, Y’s, Education, Health and Care Plan (EHCP). Mrs X also complained the Council did not use her private Educational Psychologists report she paid for. She complained about poor communication from the Council. Mrs X said this has affected her mental health and Y’s health. There was fault in the way the Council delayed issuing Y’s EHCP, delayed dealing with Mrs X’s complaint and communication with the Council was poor. Mrs X suffered distress, frustration and the Council delayed her appeal rights to the Tribunal. The Council has agreed to apologise, make a financial payment and provide guidance to its staff.

The complaint

1. Mrs X complained the Council delayed assessing and issuing her daughter, Y’s, Education, Health and Care Plan (EHCP). Mrs X also complained the Council did not use her private Educational Psychologists report she paid for. She complained about poor communication from the Council. Mrs X said this has affected her mental health and Y’s health.

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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. 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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How I considered this complaint

5. I read Mrs X’s complaint and spoke to him about it on the phone.
6. I considered information provided by Mrs X and the Council.
7. 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

Background information

8. 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 EHCP 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.
9. 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.
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 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.

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 council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
13. Those consulted have a maximum of six weeks to provide the advice.
14. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)

What happened

15. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
16. Y has additional needs. She has been educated at home since January 2022.
17. In June 2022, Mrs X applied for an EHCP for Y. The Council requested information from professionals to inform Y’s application.
18. Y’s previous school, school B, responded in July 2022.
19. The Occupational Therapist (OT) and the health service provided information for Y’s application in August 2022.
20. A Council officer provided information about Y’s home education needs to inform the application in September 2023. Mrs X provided an EP report she funded as the Council told her of delays getting EP information for EHCPs.
21. In October 2022, the Council informed Mrs X it could not use the EP report she provided. The Council advised her the report did not provide detail about recommendations for a school provision. It said as the goal was Y would return to a school placement, it could not use the report.
22. The EP the Council commissioned provided the report in January 2023.
23. The Council issued Y’s draft EHCP at the end of January 2023. The Council sent consultations to a number of schools and asked if they could meet Y’s needs.
24. In March 2023 Mrs X asked the Council why it consulted school B. She set out Y could not attend school B, so she was educated at home.
25. Mrs X complained to the Council in the middle of March 2023. She complained the Council had not issued her EHCP and she applied in June 2022. She also complained about poor communication from the Council.
26. At the start of April 2023, Mrs X told the Council, school B stated the Council should not name it in the plan. The Council noted school B responded to the Council’s consultation for a place for Y. School B stated it “may be able to meet needs, but the school was not the parental preference”. The Council issued Y’s final EHCP the following day. It named school B in section I.
27. The Council responded to Mrs X’s complaint in July 2023. The response advised the capacity issues in the EP service delayed the Council completing the EHC needs assessment. The Council apologised for the delay issuing Y’s plan. The Council acknowledged communication with Mrs X was poor because of staffing issues and it apologised.
28. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to improve its communication and adhere to statutory timescales.
29. In response to my enquiries the Council stated it could not provide communication with Mrs X before March 2023 as the worker left their role. The Council confirmed it had capacity issues in its EP service and this delayed the report needed for Y’s plan.

My findings

Delays in issuing the EHCP

30. It is clear from documentation, and the Council accepted, it delayed issuing Y’s EHCP. The Council confirmed this was because of a lack of EPs to provide a report for the needs assessment. The Council decided it could not use a private report from Mrs X. I have seen no evidence the Council made sufficient effort to source an alternative EP.
31. The Council Accepted Mrs X’s request for an EHCP in June 2022. Legislation sets out the Council should issue the final EHCP within 20 weeks from the request. Once the Council agreed to assess Y’s needs, it should have issued the plan by the end of October 2022. It did not issue the final EHCP until April 2023, a six-month delay.
32. Mrs X disagreed with the school named in the EHCP. This final plan engaged the right of appeal to the SEND Tribunal. The way for Mrs X to challenge this was by appealing to the SEND Tribunal. The courts have established the Ombudsman cannot investigate matters which are closely linked to matters appealable to the Tribunal.
33. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. The fault caused Mrs X and Y an injustice because of the delay and uncertainty. The delay issuing the final EHCP also delayed Mrs X’s ability to exercise her right of appeal to the SEND tribunal.
34. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss. It might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. Our remedies are not intended to be punitive. We do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the Council.
35. The Ombudsman is aware of the national shortages of Educational Psychologists. We have standardised our approach to remedying injustice in light of this. In these circumstances, we recommend a payment of £100 for each month outside the statutory timescales which continues up to the point the Council issued the final EHCP.

Did not use the private EP report

36. Miss X said the Council told her it would use the private EP report she funded. The Council advised it could not use the report as it did not have enough information about school. The Council has provided a reasonable reason not to use the report.
37. I have not seen any evidence to support Mrs X’s claim the Council said it would use, or fund, the private OT report. Without any supporting evidence I cannot conclude what the Council agreed to. The Council was not at fault.

Poor communication

38. The Council has not provided correspondence for most of this case. It said it could not due to the officer leaving. We expect Councils to keep accurate records. This has impacted my ability to investigate this complaint.
39. However, I have seen evidence provided by Mrs X, she had to chase the Council on multiple occasions. The Council also admitted in its complaint response communication was not good enough. This is fault and frustrated Mrs X.

Complaint handling

40. The Council dealt with this complaint through its corporate complaint procedure. The Council responded to Mrs X’s complaint after four months. The Council policy states it would provide a complaint response within 20 working days. If it could not respond within 20 working days, it would communicate with the complainant. Miss X chased a response. The Council has shown it communicated with Mrs X to say the response would be late. However, it took three months longer than the policy describes to respond to the complaint. This delay is fault and this frustrated Mrs X.

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Recommended action

41. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for not issuing the EHCP within statutory timescales, poor communication and delays responding to her complaint. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mrs X £300 for the distress, uncertainty and delaying her appeal rights to the Tribunal.
• Pay Mrs X £600 for the delay issuing the EHCP.
• Remind relevant staff of the importance of effective complaint handling.
• Remind relevant staff of the importance of accurately recording information.
42. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

43. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman