Summary: The Council delayed issuing K’s Education, Health and Care Plan, failed to respond to Mrs B’s requests for mediation and delayed responding to Mrs B’s complaints. The Council has agreed to make payments to Mrs B and K, and to take action to improve its services.

The complaint

1. The complainant, Mrs B, complains about the Council’s handling of her son’s school’s request for an Education, Health and Care (EHC) Plan. She says the Council took too long to complete the process, failed to respond to her requests for mediation and took 15 months to respond to her Stage 2 complaint. She also complains the Council failed to respond to her son’s school’s request for an urgent annual review.

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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 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)
3. 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)
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)

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How I considered this complaint

6. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• considered the Council’s responses to the complaint; and
• given the Council and the complainant the opportunity to comment on my draft decision.
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 found

Special educational needs

8. 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. 
9. 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).

10. The council must review and amend an EHC Plan in enough time prior to a child or young person moving 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 are: 

• early years provider to school;  
• infant school to junior school;  
• primary school to middle school;  
• primary school to secondary school; and  
• middle school to secondary school.  

11. There is a right of appeal to the SEND Tribunal against the description of a child or young person’s special educational needs, the special educational provision specified, the school or placement or that no school or other placement is specified.
12. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal.
13. Councils must arrange for mediation between it and the child's parent or young person within 30 days of the date it was told they wished to pursue mediation.

Background and key events

14. In January 2022, when Mrs B’s son, K, was nine years old, his school asked the Council to carry out an EHC needs assessment. The Council agreed to carry out the assessment on 8 March and decided it would issue an EHC plan on 16 June.
15. On 30 June, Mrs B complained via her solicitors that the Council had failed to comply with the statutory timescales for dealing with EHC assessment requests. The solicitors said that the final EHC Plan should have been issued by 20 June.
16. The Council issued the final EHC Plan on 1 August and responded to Mrs B’s complaint on 5 August. Mrs B was not satisfied with the EHC Plan or the Council’s response to her complaint.
17. Mrs B then applied for mediation. The Council did not respond to her requests or those from the mediation service.
18. In September, Mrs B asked to escalate her complaint to Stage 2 of the Council’s complaints process. Mrs B complained that the Council had failed to comply with its statutory duty to offer a date for mediation within 30 days of her request. She also complained that the Council had refused to carry out a review of K’s EHC Plan until June 2023. She explained that K was in Year Six and was due to transition to secondary education, and so the Council had a statutory duty to review and amend his EHC Plan before 15 February 2023. She pointed out that his plan did not include any needs, provisions or outcomes beyond Year Six.
19. Around a month later, Mrs B complained to her MP that the Council had failed to arrange mediation or respond to her concerns.
20. Mrs B appealed to the SEND Tribunal on 18 October.
21. The Council wrote to Mrs B’s MP in November. It said that it could not consider a complaint about the content of K’s EHC Plan while the appeal process was ongoing, but that it would respond to the other elements of her complaint.
22. K’s school held an emergency annual review meeting in November 2022. It stated that it could no longer meet K’s needs and it felt his needs could be met more effectively in a specialist setting. The Council agreed to carry out a review.
23. Mrs B arranged for the Educational Psychologist who had assessed K previously to meet with him again. In her report, she said it would be appropriate for K to transfer to a specialist setting.
24. The tribunal working documents process was followed in order to reach an agreement before the appeal hearing. The Council told Mrs B that it would be following this process to make the amendments proposed in the annual review, rather than following the annual review process. Between December 2022 and March 2023 the Council worked with Mrs B and her solicitors to make changes to K’s EHC Plan. Agreement was reached in March 2023 and the plan was formalised by way of a consent order.
25. The Council issued the final EHC Plan on 16 April 2023 and K started attending a different school, a specialist setting, in June.
26. Mrs B contacted the Council on 27 March 2023 about the complaint she made in September 2022. She had not received a response to any aspects of her complaint. Mrs B said that the appeal process had ended and she asked the Council to respond to her complaint.
27. The Council issued its final response to Mrs B’s complaint on 28 December. It said that the case officer was wrong to tell Mrs B that a review would not be carried out until June 2023 and it confirmed that reviews must be carried out before the phase transfer deadline of 15 February. It also accepted that the case officer had not dealt with Mrs B’s requests for mediation. It explained that the case officer was not suitably skilled which resulted in the lengthy delay and subsequent tribunal.
28. Mrs B says the Council’s failure to respond to her complaints and her requests for mediation meant she had no choice but to appeal the EHC Plan to the SEND Tribunal which resulted in thousands of pounds in legal fees.

Analysis

29. The period from when an EHC assessment is requested until the final EHC Plan is issued must take no more than 20 weeks. In this case, K’s school requested an EHC assessment on 25 January 2022 and a final EHC plan was issued on 1 August 2022, 27 weeks later. This delay was fault.
30. The Council had a duty to arrange mediation following Mrs B’s request. It did not do so; this was fault.
31. The final EHC plan issued on 1 August 2022 did not include the name of the school K would be attending after he left primary school, or the support and provision he would need then. The Council’s case officer failed to recognise that the Council had a duty to review and amend K’s EHC plan before 15 February 2023. This was fault.
32. The Council’s complaints procedure says that the timescale for it to respond to Stage 2 complaints is 20 working days but for more complex cases, it will respond within a maximum of 65 working days. The Council told Mrs B’s MP that it would respond to the elements of her complaint which did not fall within the scope of the appeal, but then did not do so. This was fault.
33. After the appeal process had ended, Mrs B asked the Council again to respond to her complaint. The Council responded to Mrs B’s complaint around nine months after the appeal had concluded, and around 15 months after Mrs B complained. This delay was fault.
34. I have considered how Mrs B and K have been affected by the Council’s failings.
35. If there had been no delay in issuing K’s EHC plan, I consider it likely that K would have started to receive additional support with his special educational needs sooner.
36. If the Council had arranged mediation, I consider it likely that the Council would have agreed to amend K’s EHC plan to include the support needed and type of school K would be attending when he left primary school. However, I cannot conclude that mediation would have addressed all of Mrs B’s concerns. At that time, the Council considered a mainstream school could meet K’s needs, and so it is possible that Mrs B would still have decided to appeal to the SEND Tribunal.
37. Mrs B has provided evidence of her legal fees which she does not consider she would have incurred if there had been no fault by the Council. Some of the fees were incurred before Mrs B appealed, and so they were not due to the Council’s failure to arrange mediation. The remainder of the fees were for providing legal advice regarding the appeal and for the solicitor’s involvement during the working documents process. Mrs B says she also incurred fees because her solicitor had to prepare for the appeal hearing, which did not then take place. I cannot conclude that Mrs B incurred these fees as a result of the Council’s failure to arrange mediation. If Mrs B considered she needed legal advice during the working documents process, it is possible that she would have also considered she needed legal advice during the mediation process. And as already stated, Mrs B may still have decided to appeal.
38. I consider the Council’s failings in this case put Mrs B to avoidable time and trouble and caused her significant frustration. I also consider she has been left with uncertainty as to whether she could have avoided appealing if the Council had participated in mediation, as it should have done.

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Agreed action

39. Within four weeks of my final decision, the Council will make the following symbolic payments:
• £1000 to Mrs B to acknowledge her distress, frustration, the uncertainty she has been left with and the avoidable time and trouble she has been put to due to the failings identified in this case.
• £600 to Mrs B for K’s educational benefit. This is to acknowledge the additional support he would have received if there had been no delays.
40. Within eight weeks of my final decision, the Council will take the following actions:
• Remind relevant staff that the Council must arrange mediation, if requested, as an informal way to resolve disputes about decisions that can be appealed to the SEND Tribunal.
• Remind relevant staff that the Council must complete reviews and amend EHC Plans by 15 February in the calendar year in which the child is due to transfer into or between school phases.
• Provide details of the action it has taken or is taking to prevent delays in assessing and issuing EHC Plans.
• Provide guidance to its complaint handling staff about the special educational needs complaints it can investigate when an appeal is ongoing, such as complaints about delays and complaints about mediation.
• Review its procedures to ensure it is able to respond to complaints within the timescales set out in its policy.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation and uphold Mrs B’s complaint. There was fault by the Council which caused injustice to Mrs B and K. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman