• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complained about the Council’s actions when carrying out an Education, Health and Care needs assessment for her child. Mrs X said this meant her child had to wait longer than they should for an Education, Health and Care Plan. We found the Council at fault for the time taken to carry out the Education, Health and Care needs assessment. To remedy the injustice caused the Council agreed to apologise, make a payment to Mrs X for the distress caused and carry out service improvements.

The complaint

1. Mrs X complains about the Council’s actions when carrying out an Education, Health and Care needs assessment for her child. She says the Council:
   • 1. Did not complete the assessment within the statutory timescales.
     2. Applied a wrong exemption for delaying completing her child’s assessment.
     3. Would not consider using a private Educational Psychologist or one funded by Mrs X.
     4. Gave wrong advice about what it would discuss at mediation.
     5. Decided to name a mainstream school in her child’s Education, Health and Care Plan and asked her to apply for a mainstream place despite Mrs X asking for a specialist school placement.
     6. Committed a data breach in March 2024.
     7. Did not meet the deadlines the SEND Tribunal set for sending information.

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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 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.
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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) 
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)

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What I have and have not investigated

7. I have not investigated complaints d), e), f) and g). Complaint f) is about a data breach. Mrs X should complain to the Information Commissioner’s Office (ICO) about this matter.
8. Complaints, d) and e) are about matters too closely related to the SEND Tribunal. If Mrs X disagrees with the school placement she could have challenged this at the SEND Tribunal. Also, the issues Mrs X wanted to discuss at mediation related to the school placement and the special educational provision, both of which she could appeal to the SEND Tribunal. The courts have decided that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
9. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). Therefore we cannot investigate complaint g).
10. This investigation will only consider complaints a) to c).

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How I considered this complaint

11. As part of this investigation I considered the information provided by Mrs X and the Council. I discussed the complaint with Mrs X over the telephone. I sent a draft of this decision to Mrs X and the Council for comments.
12. 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

Law and guidance

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. 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.
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:
    • 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.
    • 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).
15. Paragraph 9.42 of the Code says where there are exceptional circumstances, it may not be reasonable to expect local authorities and other partners to comply with the time limits above. The Special Educational Needs and Disability Regulations 2014 set out specific exemptions. These include where the educational institution is closed for at least 4 weeks, which may delay the submission of information from the school or other institution.
16. 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 (EP);
    • 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 suitable for a satisfactory assessment.
17. Those consulted have a maximum of six weeks to provide the advice.

What happened

18. Mrs X’s child Y attended a nursery. On 11 April 2023, Y’s nursery asked the Council to carry out an EHC needs assessment for Y.
19. On 22 May 2023, the Council told Mrs X it would carry out an EHC needs assessment for Y.
20. In late July 2023, the Council told Mrs X it was applying for an exemption to delay Y’s EHC assessment because the educational setting which Y attended closed from July to September 2023.
21. Mrs X responded on 27 July 2023, and told the Council Y attended a nursery which did not close for the summer holidays. Mrs X also explained Y’s nursery provided the Council with advice with their request for an EHC needs assessment.
22. In late August 2023, Mrs X asked the Council if she could fund a private Educational Psychologist to speed up Y’s EHC needs assessment. The Council told Mrs X it would only consider a private Educational Psychologist’s report alongside a report from an Educational Psychologist who worked for or the Council commissioned.
23. In mid-September 2023, the Council assigned Y an Educational Psychologist. The Council’s Educational Psychologist provided their report in late October 2023.
24. The Council issued Y a draft EHC Plan on 30 November 2023. Mrs X sent the Council her amendments to the draft EHC Plan and asked for a specialist placement for Y.
25. The Council consulted with Mrs X’s preferred specialist placement and several mainstream schools. Mrs X said the Council told her she had to apply for a mainstream placement too through its school admissions team. The specialist school the Council consulted with decided it could not offer Y a school placement for September 2024.
26. On 12 February 2024, the Council issued Y’s final EHC Plan. The Council named a mainstream school as Y’s placement in the Plan. After receiving the final EHC Plan, Mrs X asked the Council for mediation. The Council told Mrs X she could not discuss the school placement at mediation and to appeal to the SEND Tribunal. Mrs X said the Council also tried to push back the time to hold mediation. Mrs X said she lost trust in the Council and appealed the content of the EHC Plan to the SEND Tribunal.
27. Mrs X complained to the Council in early March 2024. Mrs X said the Council:
    • Inappropriately used an exemption to delay the assessment process of her child’s EHC assessment.
    • Delayed getting a report from an Educational Psychologist and would not use a private report to speed up Y’s assessment.
    • Told her she had to apply for a mainstream school to register Y on the admissions roll even though she wanted a specialist placement. The Council then named her preferred mainstream school in the EHC Plan.
    • Gave wrong advice about what it could discuss at mediation. The Council then delayed providing mediation dates. As a result, Ms X said she chose to appeal to the SEND Tribunal.
28. Mrs X progressed her complaint through the Council’s complaints process and received a final response on 24 April 2024. The Council’s final position was:
    • It apologised for applying the exemption that Y’s educational placement closed over the summer. The Council said it applied this exemption as standard practice when there could be delays assessing a child or young person’s EHC Plan.
    • The Council said there was a shortage of Educational Psychologists. It sought legal advice about whether it had to use a private Educational Psychologist and decided it did not. The Council said it used Educational Psychologists employed or commissioned by the Council as the Educational Psychologist’s advice was a key part of the assessment. The Council said it had a recovery plan for the delays getting advice from Educational Psychologists.
    • It told Mrs X to apply for a mainstream school placement through the usual admissions route in the event the Council decided not to issue an EHC Plan for her child. The Council said it did this to ensure those children who do not end up with an EHC Plan after an assessment had a school place arranged by the admissions team. The Council said there were times when it could not name parental preference for a specialist placement due to the number of placements available.
    • Apologised for telling Mrs X it could not discuss the placement at mediation.
29. Mrs X remained dissatisfied and complained to the Ombudsman. The SEND Tribunal has since finished and found the Council should name a specialist school placement in Y’s EHC Plan.

Analysis

30. Y’s nursery asked for an EHC needs assessment on 11 April 2023. The Council sent Mrs X its decision which said it would assess Y on 22 May 2023. This was within the six week statutory timeframe.
31. The Council did not issue a final EHC Plan until 12 February 2024. The Council should have issued Y’s final EHC Plan by 29 August 2023 (within 20 weeks of receiving the request to assess Y). Failure to do so was fault. As a result, Y has waited six months longer than they should have to receive an EHC Plan. Also, Mrs X’s appeal rights to challenge the content of the EHC Plan were delayed by six months. This is an injustice to Y and Mrs X.
32. I cannot say if Y’s EHC needs assessment would have reached the same conclusions had it taken place six months earlier. There is a national shortage of Educational Psychologists. Much of the delays to Y’s EHC Plan were because of the time taken to get advice from an Educational Psychologist. The assessment process takes account of the latest evidence about the child’s present circumstances. It does not look at the child’s situation at the point when the Council should have originally provided the EHC plan. If the delays assessing Y, caused by delays getting Educational Psychologist, disadvantaged their special educational needs we would expect the delayed EHC Plan to take account of this. If it does not Mrs X had the right to appeal the provision at the SEND Tribunal which she decided to do.
33. Mrs X wanted the Council to use a private Educational Psychologist or allow her to commission one to speed up the assessment. The Council declined. It said it would only use an Educational Psychologist report from one it employs or commissions. I have not found the Council at fault for this decision. We see this as a decision the Council is entitled to take as it is the body which ultimately decides what should be in the EHC Plan.
34. In July 2023, the Council told Mrs X it was applying for an exemption to delay Y’s EHC assessment. This was on the basis Y’s educational setting closed for over four weeks over the summer. I have found the Council at fault for this decision. The Council did not check whether Y’s educational setting was in fact open. While I have found fault I do not consider this has caused injustice to Mrs X and Y. This is because the Council delayed issuing Y’s EHC Plan because of the time taken to obtain advice from an Educational Psychologist. I do not consider Y would have received an EHC plan sooner had the Council not applied the exemption. However there may be other people who are disadvantaged by the Council applying this exemption as it said it was routinely applying it to assessments where it considered there could be a delay in the assessment process.

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Agreed action

35. Within one month of my final decision the Council agreed to carry out the following:
    • Provide Mrs X with a written apology for the faults identified. The apology should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
    • Pay Mrs X £600 to recognise the avoidable distress caused by the delays issuing Y’s final EHC Plan.
    • Provide the Ombudsman with an update as to what specific action it is taking to reduce the backlog of assessments waiting for advice from Educational Psychologists.
    • Stop routinely applying the exemption where an educational institution is closed for at least four weeks. The Council should only apply this when it is relevant and the delays completing the assessment are due to it being unable to receive advice in time from the educational provider. The Council should provide evidence to the Ombudsman as to what steps it has taken to stop this exemption being routinely applied to all cases with delays.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation and found the Council was at fault and this caused injustice to Mrs X and Y. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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