Summary: Mrs X complains the Council failed to follow the statutory time limits for dealing with her son Y’s Education, Health and Care needs assessment and issuing his Education, Health and Care Plan. We find fault with the Council for delay and have agreed a symbolic payment for lost provision for Y, and the distress and frustration caused to Mrs X.

The complaint

1. Mrs X complains the Council failed to complete her son’s Education, Health and Care Plan in time for him to attend secondary school.
2. The delay caused frustration and distress to Mrs X, and regression in her son Y.
3. Mrs X would like the Council to put systems in place to ensure this does not happen again.

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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 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)
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
9. 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

10. I spoke with Mrs X and considered the information she provided.
11. I made enquiries with the Council and considered the information it provided.
12. I considered relevant law and guidance, as set out below and our guidance on remedies, published on our website.
13. 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 have / have not investigated

14. The Ombudsman generally expects complaints to be brought to us within 12 months of someone becoming aware of the issue (see paragraph six). Mrs X made a complaint to the Council in October 2023 but I consider there are good reasons to extend my investigation to September 2023, when Mrs X requested the EHC Needs Assessment. This is because it is tied into later events.

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What I found

Education, Health and Care Needs Assessment

15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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. 
16. 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).  
17. As part of the assessment councils must gather advice from relevant professionals.

Education, Health and Care Plan

18. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The Plan sets out the child’s needs and what arrangements should be made to meet them.
19. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.
20. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers include primary school to secondary school.

Appeal right

21. 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.

Council’s complaint procedure

22. The Council has a three stage complaints procedure:
• Informal stage – offered outside the formal complaints process with resolution through a conversation or meeting with a service manager.
• Stage one – a response from the head of the relevant Council service within 10 - 20 working days.
• Stage two – a response from the relevant service manager within 20 working days, or advise to go straight to the Ombudsman.

What happened

23. Mrs X has a son Y, who has a diagnosis of Autism and Attention Deficit Hyperactivity Disorder (ADHD).
24. Mrs X sought an EHC needs assessment in September 2022. The Council agreed this and told Mrs X in January 2023.
25. The Council said in response to our enquiries it requested advice from the Educational Psychologist (EP) in February, and from the Designated Clinical Officer for SEND in March. In response to our draft decision the Council said both requests were sent on 16 February 2023.
26. The Council got a report from the EP in June 2023 and from the SEND Officer in October.
27. Mrs X complained to the Council in October as she was still waiting for the final EHC Plan. The Council responded in February 2024 upholding her complaint saying the process was taking longer than expected due to the “volume of referrals and capacity of Education Psychologists in Cornwall.”
28. The response from the Council also upheld her complaint about the lack of communication from the SEND team due to the capacity of staff and the volume of requests.
29. Mrs X was unhappy with this response so she raised a stage two complaint at the end of February 2024. She wanted a specialist school named in the EHC Plan and complained the Council failed to take her request to panel. The Council responded saying it could not complete a stage two review as there was no new evidence.
30. Mrs X brought her complaint to the Ombudsman. She says the Council have not given Y his first choice of secondary school. Because of the delay his mental health has declined and he is struggling.
31. Y was on a reduced timetable at his mainstream school. Mrs X says it could not meet his needs. The Council say the school was consulted as part of the assessment process and confirmed it could meet Y’s needs in a letter dated November 2023. Y was not provided with any other provision.
32. Mrs X wanted a specialist school named in the EHC Plan. The Council sent her an email in April 2024 explaining the panel had decided Y’s needs could be met in a mainstream school. Mrs X was unaware the panel had taken place.
33. Mrs X wrote to the Council again in March explaining she had not received the final EHC Plan which was preventing Y’s chances of getting a secondary school place in the specialist school she wanted him to attend in September.
34. The Council sent the final EHC Plan to Mrs X on 1 May 2024 with the primary school named in Section I. The final EHC Plan with the specialist school placement is dated 28 May 2024, with Y starting the specialist school from September.

Analysis

35. The Council had the opportunity to tell Mrs X the panel decision about the specialist school placement after her stage two response. It should have told her after the panel in November 2023. This was a missed opportunity by the Council to keep Mrs X informed, causing frustration and confusion to Mrs X.
36. Mrs X sought the EHC Needs Assessment in September 2022. The decision to agree the assessment should have been communicated to Mrs X within six weeks (see paragraph 15). The Council did not communicate its decision with Mrs X until January 2023. This is fault causing uncertainty and frustration to Mrs X.
37. Under the regulations in paragraph 16 the EHC Plan should have been issued by early February 2023. It was not issued until May 2024. This is a delay of 15 months by the Council. The delays have had an impact on both Mrs X and Y. It caused Mrs X frustration and uncertainty about whether Y would have received support sooner, and uncertainty about where he would attend secondary school (see paragraph 20). It also meant Mrs X’s appeal rights were delayed.
38. In response to Mrs X and to our enquiries the Council say the delay was due to the shortage of EP’s. The Ombudsman is aware there is a national shortage of public and private EP’s. In this instance the Council received the EP report in June 2023, which was three and a half months after asking for it. This means the EP delayed completing the advice by two months. As explained in paragraph five above, the two months delay we would treat as service failure rather than maladministration.
39. However most of the delays in this EHC Plan process were caused by other reasons rather than the shortage of EP’s:
• The first delay was from the date the Council received the EHC Needs Assessment request (September 2022) until the date of the Council’s decision to agree to issue Y’s EHC Plan (January 2023). The Council should have made this decision within six weeks (see paragraph 15).
• The second delay was from receipt of the EP report in June 2023 until issuing the final EHC Plan in May 2024. This was not a result of the shortage of EP’s as stated in the complaint response.
40. I find fault with the Council for the delays in paragraphs 39 and 40. This is a delay of three and a half terms of missed educational provision for Y.
41. Mrs X says the Council failed to satisfactorily communicate with her, causing frustration, confusion and distress. The Council recognise this in the first complaint response.
42. The complaint response should have been sent within 10 – 20 days (see paragraph 22) but there was a delay of four months. This is fault by the Council.

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Agreed action

43. Within a month of the final decision, the Council will:
• Send a written apology to Mrs X for failure to keep her updated and for the delay stated above;
• Pay Mrs X the following:
1. £3500 for the missed provision for three and a half terms x £1000 per term. Where fault has resulted in a loss of educational provision, The Ombudsman Guidance on Remedies recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. As Y was still receiving some education at school I have made an award at the lower end of the bracket.
2. £350 for the delays within the EHC Needs Assessment. This consists of the Council’s delay in taking the decision to assess Y, and includes £200 (£100 per month) for the service failure.
3. £300 to recognise the distress, frustration and uncertainty caused to Mrs X by the Council’s failure to issue the final EHC Plan in line with statutory timescales.
4. £150 for the time and trouble due to the delay of the complaint response. The total payment to Mrs X is £4300.
44. Within three months the Council should:
• Remind relevant staff to respond to complaints in line with the Council’s procedure;
• Provide us with its plan to improve compliance with the EHC needs assessment timescales.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I find fault with the Council for delay in completing the Education, Health and Care needs assessment. I have recommended a symbolic payment for the lost provision for her son, and the frustration and distress caused to Mrs X.

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Investigator's decision on behalf of the Ombudsman