Summary: Miss B complains about the Council’s decision not to assess her son for an Education, Health and Care Plan (EHC Plan), and the Council’s subsequent delays in carrying out an EHC needs assessment and issuing an EHC Plan after she later applied again. She also complains the Council failed to consider relevant information during the assessment process and when issuing the EHC Plan. There was fault by the Council in the way it did not meet statutory timescales during the EHC Plan process. Because of this, Miss B suffered distress and frustration, and the Council’s failure to meet statutory timescales delayed her appeal rights to the Tribunal. Miss B’s son missed out on provision and support. The Council will apologise to Miss B and her son, make a symbolic payment, and provide staff training.

The complaint

1. Miss B complains about the Council’s decision not to assess her son, who I will refer to as C, for an EHC Plan, and the Council’s subsequent delays in carrying out an EHC needs assessment and issuing an EHC Plan after she later applied again. She also complains the Council failed to consider relevant information during the assessment process and when issuing the EHC Plan including full Speech and Language Therapy (SaLT) and social care assessments.
2. Miss B says as a result of the Council’s failings C’s wellbeing and education has been impacted and her efforts and time spent contacting the Council has also put a strain on her own health and wellbeing.

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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 an injustice, 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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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)
9. 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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What I have and have not investigated

10. I have investigated matters in this case from late March 2022 to July 2024.
11. I have not investigated:
• Miss B’s complaint about the Council’s decision not to assess C for an EHC Plan in 2021. This is because a decision not to carry out an EHC needs assessment carries a right of appeal to the SEND Tribunal.
• Any reference to the contents of C’s final EHC Plan. This is because Miss B can, and has, appealed the contents of the plan to the SEND Tribunal.
• Miss B’s complaint the Council failed to consider relevant information during the EHC needs assessment process and when issuing the EHC Plan. This is because we cannot investigate matters, or closely linked matters which are appealable, or have been appealed to the SEND Tribunal.
• Any reference to the actions of C’s school. This is for the reason set out in paragraph 6.

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How I considered this complaint

12. I read Miss B’s complaint and spoke to her about it on the phone.
13. I considered information provided by Miss B and the Council.
14. Miss B and the Council have had an opportunity to comment on my draft decision. I have considered their comments before making a final decision.

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What I found

15. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. 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 young person.
• Section I: The name and type of school.
16. 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:
• Where a Council receives a request for an EHC needs assessment it must decide whether to agree to the assessment within six weeks;
• If a Council decides to carry out an assessment, it should do so in a ‘timely manner’;
• If the Council decides to issue an EHC Plan after an assessment, it should prepare a draft EHC Plan. The Council should send the draft EHC Plan to the child’s parent or the young person and give them at least 15 days to comment; and
• The whole process should take no more than 20 weeks from the point the Council received the assessment request to the date it issues the final EHC Plan.
17. There is a right of appeal to the SEND Tribunal about the educational provision and placement named in a child’s EHC Plan. This appeal right only takes effect once the final EHC Plan has been issued.

What happened

18. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
19. In 2021, Miss B requested an EHC needs assessment for her son, C. The Council’s decision was not to carry out an EHC needs assessment for C. Miss B did not appeal this decision to the Tribunal.
20. On 28 March 2022, Miss B emailed the Council to make a further request for an EHC needs assessment for C.
21. On 5 April 2022, the Council noticed Miss B had not sent a completed application form with her request, so it asked her to send it one.
22. On 22 April 2022, Miss B sent a completed application form to the Council but told it that she had already provided the Council with all the information the form required within her original request.
23. On 16 May 2022, Miss B raised a complaint with the Council as she had not had a response to her EHC needs assessment request from the Council.
24. On 29 July 2022, the Council sent Miss B a decision letter and advised her it would carry out an EHC needs assessment. It told her it would gather information and advice from professionals over the next six weeks. It would be in touch with her to tell her the outcome of the assessment and whether it would be issuing a draft EHC Plan or not.
25. On 3 October 2022, Miss B emailed the Council and asked it for an update as she had not yet had a decision from it about the outcome of the EHC needs assessment.
26. On 7 October 2022, the Council apologised to Miss B that she needed to contact it. It told her the service has gone through a restructure and has struggled with capacity. It told her it had forwarded her email to the new case officer.
27. In mid-November 2022, Miss B raised a further complaint with the Council about its failure to respond to her request for an EHC needs assessment and EHC Plan. She told it:
• More than six weeks had passed since her request for an assessment and the Council had not sent her its decision; and
• She had requested her son be assessed as part of the EHC assessment process such as full SaLT and social care assessments, but only an Educational Psychologist had assessed C.
28. On 22 November 2022, the Council sent its decision to Miss B that it would be issuing an EHC Plan for C. It also sent Miss B a copy of the draft EHC Plan.
29. On 1 December 2022, the Council told Miss B an extension was needed so it could fully respond to her complaint. It told her it would send her a complaint response by 19 December 2022.
30. On 6 December 2022, C’s school sent its comments on the draft EHC Plan to the Council for it to consider.
31. On 23 December 2022, Miss B sent her comments on the draft EHC Plan to the Council.
32. On 14 February 2023, the Council sent its stage one complaint response to Miss B. It told her:
• It apologises for the lateness in sending a complaint response and for any frustration and inconvenience this caused her; and
• It had agreed to have a ‘Next Steps’ meeting with C’s school which would be held on 21 February 2023, where it would discuss Miss B’s outstanding issues about the draft EHC Plan to try and achieve the outcome she and C’s school want.
33. On 27 April 2023, Miss B raised a stage two complaint with the Council as it had still not issued a final EHC Plan for C. On this date, the Council also sent Miss B a copy of a second draft EHC Plan.
34. On 8 May 2023, Miss B sent her comments on the second draft EHC Plan to the Council.
35. At the end of May 2023, the Council issued the final EHC Plan.
36. On 8 June 2023, the Council sent its stage two complaint response to Miss B. It told her:
• It apologises for the delay in responding to her complaint. It explained the delays are due to the rise in assessment requests to the service which has impacted its ability to respond to complaints in a timely manner, and that it has recruited temporary staff to help complete the work;
• It had requested all the advice from professionals during the EHC assessment process that is legally required, although it accepts there were certain areas it did not explore; and
• It apologised for the delays in the EHC Plan process and any frustration and inconvenience it has caused.
37. On 28 July 2023, Miss B appealed sections B, C, D, F, G, H of the final EHC Plan to the SEND Tribunal.
38. On 18 July 2024, the SEND Tribunal sent Miss B its decision. It ordered the Council to amend sections B and F of the EHC Plan, and recommended the Council amend sections C, D, G and H of the EHC Plan.

Analysis

39. The Council has acknowledged, and it is clear from the documentation, there have been significant delays in this case. The Council did not write to Miss B with its decision following her request for an EHC needs assessment within the statutory timescales. Miss B’s request was made on 28 March 2022. The Council told us Miss B’s request was made on 22 April 2022, as this is the date it received the completed application form from Miss B that it asked her for, following her original request she made to the Council on 28 March 2022. But, there is not anything written in the Code which says requests needs to be made in a particular way, so I consider the date of the request to be 28 March 2022. Miss B received the Council’s decision that it would carry out an EHC needs assessment on 29 July 2022. This is a delay of 11 weeks. She then received the final EHC Plan on 31 May 2023. This is a total delay of nine and a half months. This was fault.
40. The nine and a half month wait delayed Miss B’s right of appeal to the Tribunal until it issued the final EHC Plan in May 2023. 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 timescales here is fault by the Council and has caused Miss B distress and frustration. This is an injustice.
41. The failure to complete the EHC assessment process and issue the final EHC Plan within the statutory timescales caused a delay in C receiving SEN provision and support outlined in section F of the Plan issued following the appeal.
42. The final EHC Plan includes twice weekly SaLT sessions and various training to be delivered to key staff. It also includes requirements for supervision during unstructured times, monitoring of food and fluid intake, and various strategies to help C cope in the school environment. But for the delay, C would have benefited from this additional provision and support sooner. Miss B has also confirmed the delay led to C being unable to attend transition days when moving to a new placement during a phase transfer. This delay caused an injustice to C, and further distress for Miss B. I have made recommendations below to remedy this.
43. The Council issued the final amended EHC Plan in May 2023. The final EHC Plan gave Miss B the right to appeal to the SEND Tribunal. While Miss B disagrees the Council considered all relevant information during the assessment process such as full SaLT and social care assessments, the way for her to challenge this was by appealing to the SEND Tribunal, which Miss B has done. The courts have established the Ombudsman cannot investigate matters, or closely linked matters which are appealable to the Tribunal.
44. Miss B told us she would like a reimbursement for the SaLT report she paid for. The Council’s refusal to arrange a SaLT report led to what Miss B considered to be an inadequate EHC Plan. One of the consequences of the Council’s refusal to get a SaLT report is therefore a plan which Miss B claimed did not meet the needs of C, which she has appealed. We therefore cannot recommend the Council reimburse Miss B the costs of the SaLT report, for the reason outlined in paragraph 43.
45. It is clear from the documentation, and the Council has acknowledged there have been delays, and communication with it has been difficult. The Council has apologised to Miss B and told us in response to my enquiries the delays are a result of staffing challenges and a significant rise in EHC assessment requests. It told us it has taken steps to improve the service including recruiting additional staff to help with the increased caseload.
46. I have made one service improvement recommendation below. We are already monitoring the Council’s progress on EHC assessment processes following recommendations from other cases where we have found similar fault. In this case, the Council agreed to send us the findings of an external review into its EHC assessment processes. It has agreed to produce and share an action plan after considering the review’s findings. This will set out what the Council will do to improve its service. I therefore have not made any further service improvement recommendations.
47. Miss B made several complaints to the Council. The Council were not timely when it responded to these. Miss B was already under significant pressure due to other failings by the Council, and its poor communication and complaint handling caused additional frustration.
48. 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, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
49. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.

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Agreed actions

50. To remedy the outstanding injustice caused to Miss B by the fault I have identified, the Council has agreed to take the following actions within four weeks of my final decision:
• Apologise to Miss B and C for the delays in the EHC needs assessment process, the Council’s issuing of the final EHC Plan, and the complaints process. This apology should be in accordance with the Ombudsman’s guidance Making an effective apology.
• Pay Miss B £2,500 to be used for C’s benefit. This is to remedy the equivalent of two and a half terms of lost provision and support which I have detailed in paragraph 42.
• Pay Miss B £350 for the distress caused by the delays in the complaints process and poor communication.
51. Within three months, the Council will also provide training to all relevant staff to remind staff of the importance of following statutory timescales when completing EHC needs assessments and issuing final EHC Plans, responding to complaints in a timely manner, and good communication and record-keeping.
52. The Council will provide us with evidence it has complied with the above actions.

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Final decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman