Summary: Mrs X complained about delays with her child’s education, health and care plan and poor communication. She said this caused unnecessary distress and delayed her child’s support. We find the Council at fault, and this caused injustice. The Council has agreed to apologise to Mrs X.

The complaint

1. Mrs X complained the Council delayed deciding whether or not to issue her child an education, health and care plan, and then delayed issuing the plan. She also complained the Council has not apologised as it said it would, and that the Council communicated poorly with her.
2. Mrs X said this caused unnecessary distress and upset, and has meant a delay in her child getting the support they need.

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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 Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
8. 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

9. Mrs X complained about a delay issuing her child’s education, health and care plan. This part of Mrs X’s complaint had not been through the Council’s complaints procedure and was therefore premature. However, the Council agreed that the Ombudsman can investigate this part of Mrs X’s complaint.
10. For this reason, I have investigated this part of Mrs X’s complaint.

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How I considered this complaint

11. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
12. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

13. 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.
14. 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: 

• 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.
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment. 
• 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.

15. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an educational psychologist; 
• 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. 

16. Those consulted have a maximum of six weeks to provide the advice. 

What happened

17. In November 2023, the Council received a request for an education, health and care (EHC) needs assessment for Mrs X’s child, B. The Council did an EHC needs assessment.
18. Mrs X asked the Council several times for input from various professionals, and asked for a response to her emails.
19. Mrs X complained to the Council. In its first complaint response, the Council said it had requested the professionals’ input Mrs X had asked for. The Council said there were delays getting an educational psychologist’s assessment due to high numbers of requests. It said it expected other reports from professionals soon.
20. In March, the Council decided to issue an EHC plan for B.
21. In its second complaint response, the Council said the educational psychologist’s report was two months late. It said it was recruiting more locum educational psychologists. It said other specialist reports were a month late.
22. The Council said that while Mrs X had asked the Council for certain professional input in December, it did not submit requests for that information until January. It acknowledged this caused unnecessary delay.
23. The Council accepted it made its decision about whether to issue an EHC plan a month late. It said it would apologise to Mrs X within two weeks.
24. The Council issued B’s EHC plan in May.
25. The Council apologised to Mrs X in August.

Analysis

Delay deciding whether to issue an education, health and care plan

26. Mrs X complained the Council delayed deciding whether or not to issue her child an education, health and care plan.
27. In its complaint response, the Council accepted it made this decision one month late. This is fault. This fault caused injustice in that it caused uncertainty and delayed Mrs X’s appeal rights.
28. The Council apologised for the injustice in its apology letter in August. I am satisfied this apology remedies the level of injustice caused here.

Delay issuing the education, health and care plan

29. Mrs X complained the Council delayed issuing B’s EHC plan.
30. As I have set out above, the whole process from the point an EHC assessment is requested until the final EHC plan is issued must take no more than 20 weeks.
31. In this case, the Council received a request for an EHC needs assessment in November 2023. This means the EHC plan was due to be issued by late March 2024. The Council issued the EHC plan in early May. This is a delay of one month and is fault.
32. Part of this fault is service failure because the delays with educational psychology and other professionals are outside the Council’s control. Part of the fault is the Council’s delay actioning Mrs X’s requests for professionals’ input.
33. This fault caused Mrs X injustice because it caused uncertainty and delayed her appeal rights.

Failure to apologise

34. Mrs X complained the Council has not apologised as it said it would in its second complaint response.
35. In March, the Council said it would apologise within two weeks for the delay getting professional advice and deciding whether to issue an EHC plan. This would have been mid-April. The Council apologised for this in August.
36. This delay of over four months is fault. I find this caused Mrs X injustice because it caused unnecessary and avoidable frustration.

Poor communication

37. Mrs X complained the Council communicated poorly with her.
38. In mid-December, Mrs X asked the Council to get input from various professionals. Mrs X chased the Council two weeks later, asking for a response. She again asked for input from professionals. Mrs X sent the Council a letter in January asking for professional input.
39. I have seen no evidence the Council responded to Mrs X’s requests until January. After this, the Council responded. However, in mid-January, Mrs X sent the Council a letter saying she had called numerous times to speak to the caseworker but was always told they were unavailable. She said the caseworker did not call her back, despite asking for this.
40. In late February, Mrs X contacted the caseworker on multiple occasions to ask for responses to unanswered phone calls and emails. She asked for an update. Mrs X got a response at the end of February.
41. I find the Council at fault for its poor communication with Mrs X. Mrs X should not have had to chase the caseworker multiple times for a response. This caused Mrs X injustice because it caused unnecessary distress and frustration.

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Agreed action

42. Within four weeks of this decision, the Council has agreed to apologise to Mrs X in writing for the injustice caused by:
• failing to issue B’s EHC plan within statutory timeframes;
• failing to apologise when it said it would; and,
• its poor communication.
43. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
44. The Council should provide us with evidence it has complied with the above action.

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Final decision

45. I have completed my investigation. I uphold Mrs X’s complaint because I find fault causing injustice. The Council has agreed to apologise to Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman