Summary: Ms H complained about the Council’s handling of the Education, Health, and Care plan process for her daughter (X). She said this caused her distress and a delay in X receiving the support she needed. We found the Council at fault for failing to adhere to the statutory timescales and it communicated with Ms H poorly as no caseworker was allocated. The Council will apologise and make payment to Ms H to acknowledge the injustice this caused her and X.

The complaint

1. The complainant, whom I shall refer to as Ms H, complained the Council had failed to adhere to the statutory timescales for the Education, Health, and Care (EHC) plan process for her daughter (X). She also said it shared a draft EHC plan of a poor standard and communicated with her poorly.
2. Ms H said, as a result, she has experienced distress and had costs to provide some provision for X. She also said X experienced a loss of special educational needs provision.

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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 law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. 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)
7. 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

8. I have investigated Ms H’s complaint about the Council’s handling of the EHC needs assessment process for X from Spring to November 2023 when it issued its final EHC plan for her.
9. I have not investigated Ms H’s concerns about the delay in providing the provision set out in X’s November 2023 EHC plan. This is because the Council has not had an opportunity to respond to these concerns through its complaints process.

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How I considered this complaint

10. I have considered Ms H’s complaint and the Council’s responses. I discussed the complaint with Ms H and had regard to the law, guidance and policy relevant to the complaint.
11. Ms H 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

Education, Health, and Care Needs assessments

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
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 the following:
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• 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.
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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);
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
14. There is a right of appeal to the Tribunal against decisions such as:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment; and
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.

Council’s complaint procedure

15. The Council has a two stage complaints process in which it says it will:
• acknowledge complaints within three working days;
• respond to complaints within 20 working days. If the issue is complicated it may take longer, and it will inform complainants when it can provide its response by; and
• if a complainant remains dissatisfied, they can bring their concerns to the Ombudsman’s attention.

What happened

16. Ms H has a daughter (X) who has health and learning difficulties which impacts how she can engage in education.
17. In February 2023 Ms H asked the Council to complete an EHC needs assessment for X, so she could receive the support she needed to access her education. She also shared a recently completed privately arranged occupational therapy report.
18. The Council started the EHC needs assessment process. It received information from X’s educational provider, an educational psychologist, a Speech and Language Therapist (SaLT) and an occupational therapist (OT). This was all available to the Council in June 2023.
19. In September 2023, Ms H complained to the Council. She said it had failed to adhere to the statutory timescales for the EHC needs assessment process.
20. A month later, the Council provided its response. It apologised for the delay and explained this was because it had received an overwhelming number of requests for EHC needs assessments, in line with the national picture. It said it would provide X’s draft EHC plan within 10 working days.
21. The Council issued X’s draft EHC plan a week later. A further draft was issued after Ms H made comments on the plan. She said this led to substantial changes, including the outcomes identified.
22. Ms H asked the Council to escalate her complaint. She said the Council’s:
• delays in issuing X’s EHC plan meant she had lost out on special educational needs support and therapy. Ms H said she had paid for some private support to support X during this time; and
• communication with her had been poor and no caseworker was allocated. This meant she had no one to contact who knew about and understood X’s case.
23. The Council told Ms H it could not escalate her complaint further as her complaint had completed its complaints process. However, it would consider the additional points she had made under a new complaint.
24. In November 2023, the Council provided its complaint response. It acknowledged the impact its delays and Ms H had found it challenging to communicate with the Council without an allocated caseworker. It explained it has allocated a worker to X’s case who would be Ms H’s contact. It also said it could not comment on her arrangement of provision as this was prior to the EHC plan was finalised.
25. In late November 2023 the Council issued X’s final EHC plan. It also reimbursed Ms H £180 for some private provision she had arranged for X during the Council’s delayed handling of the EHC Plan process.
26. Ms H asked the Ombudsman to consider her complaint as she was not satisfied with the Council’s responses.
27. Ms H has since said the Council caused delays in putting in place some provision set out in X’s EHC plan. She has also asked the Council for mediation regarding parts of the plan she disagrees with.

Analysis and findings

The EHC plan process

28. Ms H asked the Council to complete a EHC needs assessment for X in February 2023. It agreed to complete the assessment. The statutory timescales say the Council must finalise X’s EHC plan within 20 weeks, which in this case was therefore in the end of June 2023.
29. The Council first issued X’s final EHC plan to Ms H in late November 2023. While I acknowledge the Council had an increase of request, this was therefore fault which amounts to just short of a 5-month delay.
30. We cannot normally remedy the injustice to a child when it is uncertain what education or special educational needs provision would have been, but for the delay in the EHC plan process. However, in this case the Council had all the relevant information from Ms H and professionals by June 2023. I am therefore satisfied, on balance, the contents of X’s EHC plan would have been the same or similar had it been issued within the statutory timescales.
31. I am satisfied this caused:
• X an injustice as she did not have access to the special educational needs provision which should have been available to her during this period as set out in the November 2023 EHC plan; and
• Ms H an injustice as due to the distress and uncertainty the Council’s delays caused. Including a delay to her ability to exercise her appeal rights to the SEND Tribunal.
32. I understand Ms H arranged some provision for X privately. However, I cannot remedy this as it was not set out in an EHC plan at the time. I understand the Council has reimbursed Ms H £180 for some of this provision, I have therefore taken this into account when considering the injustice Ms H experienced.

The EHC plan

33. Ms H said the draft EHC plan the Council shared was of poor standard and she had concerns about some of the provision in the plan.
34. Ms H’s concerns relates to the content of the EHC plan, which I cannot consider. This is because such issues carry appeal rights to the SEND Tribunal. I also understand a further new EHC Plan has since been issued, however this does not mean I can consider the content of the plan.

Communication with Ms H

35. The Council said it initially allocated an officer to X’s case. However, when this officer left the Council, it did not allocate the case to anyone else. This was because any unallocated cases should be actioned by a hub of its officers in the team. The Council allocated an officer in late 2023 following Ms H’s complaint and issued its final EHC plan for X soon after.
36. The evidence shows Ms H contacted the Council and sought answers to her questions and concerns. However, as no officer was allocated to X’s case the information and responses she received were not as clear and informative as they should be. This was therefore fault.
37. I am satisfied the Council’s poor communication caused Ms H some additional distress and uncertainty. This ended shortly before it issued its final EHC plan for X when it allocated its officer in late 2023.
38. I found no fault in the Council’s complaints handling as this was in line with its published policy.
39. We have recently considered other complaints against the Council regarding its handling of the EHC plan process, in which we have made service improvement recommendations for staff training and improvements to the process. As this case relates to the same period and the Council has not yet had the opportunity to fully implement the changes, I have not made further recommendations for the same matters.

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Agreed action

40. To remedy the injustice the Council caused to Ms H and X, the Council should, within one month of the final decision:
1. apologise to Ms H for not issuing X’s EHC plan within the statutory timescales and its poor communication. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology;
2. pay Ms H £300 to acknowledge the distress and uncertainty the Council’s faults caused her, including her delayed right to appeal to the SEND Tribunal; and
3. make payment to Ms H, to use as she sees fit for X’s benefit, to acknowledge the loss of special educational needs support X would have received but for the Council’s delays from September to November 2023. This was;
1. £120 for the loss of speech and language therapy and occupational therapy provision; and
2. £200 for other special education needs support and methods.

In total the Council should pay Ms H £620.

41. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. the Council should remind staff in its Special Educational Needs and Disability team to:
1. respond to parents in a timely manner and ensure appropriate notes are available on its records to provide clear and sufficiently detailed responses.
2. ensure cases allocated to individual staff or the Council’s hub are progressed in line with the statutory timescales for the Education, Health, and Care Plan process.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation with a finding of fault by the Council which caused Ms H and X an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman