Summary: There was a delay of twelve weeks issuing Y’s final Education, Health and Care Plan and a delay in responding to a request for social care advice which caused avoidable frustration and a delay in appeal rights. The Council has apologised, which is a partial remedy. The Council will make a symbolic payment of £250 and a payment of £900 to reflect the loss of a term of special educational provision. There was no fault in the Council sending an additional complaint response at stage one, because this is in line with its policy.

The complaint

1. Mx X complained the Council:
1. Delayed issuing her child Y’s Education Health and Care Plan (EHC Plan)
2. Failed to consult with their preferred educational placement.
3. Refused to escalate the complaint to stage two of its complaints procedure.
4. Took nine months to complete a social care assessment.
2. Mx X also complained the Council:
1. Issued an incomplete draft EHC Plan which did not include speech and language therapy (SLT), occupational therapy (OT) or physiotherapy (PT).
2. Failed to include social care assessments or provision.
3. Has a practice of screening out children who have been referred for a social care assessment.
4. Called an early annual review.
3. Mx X said this caused avoidable distress and time and trouble and Y a loss of special educational provision (SEP).

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The Ombudsman’s role and powers

4. 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)
5. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. We provide a free service and use public money carefully. We do not start or continue an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement (Local Government Act 1974, section 24A(6), as amended, section 34(B))

7. 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)
8. The SEND Tribunal hears appeals against the content of an EHC Plan including Sections B, F and I (see paragraph 15). The Tribunal also has powers to hear appeals and make non-binding recommendations about the health and social care aspects of EHC Plans including a child’s social care needs and social care provision.
9. 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)
10. 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)
11. 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

12. I investigated the complaints in the first paragraph. I did not investigate the complaints in the second paragraph because:
• 2(a) is about provision in Section F of Y’s EHC Plan and had a right of appeal, which has been used
• 2(b) is about provision in Section H of the Plan. It was reasonable for Mx X to have included this in her appeal
• There is no personal injustice arising from complaint 2 (c). Mx X’s complaint is about the Council allegedly screening out other cases for social care assessments, rather than Y. Those parents need to make their own complaints.
• Complaint 2(d) is premature (has not been made to the Council). And the outcome or consequence of the annual review was the Council decided to amend Y’s EHC Plan. The disputed sections of the amended EHC Plan could reasonably have been included, as part of the tribunal appeal; so we would not investigate a complaint about the issue.

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How I considered this complaint

13. I considered the complaint to us, the complaint to the Council and the Council’s responses to the complaint. I also considered documents from Mx X and the Council, including those summarised in the following section of this statement.
14. Mx 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 found

Relevant law and guidance

15. 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 which include:
• Section B: Special educational needs (SEN)
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision (SEP) needed by the child or the young person.
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN.
• Section I: The name and/or type of educational placement.
16. An EHC assessment includes an assessment of the child or young person’s social care needs. (Section 36(20) of the Children and Families Act 2014)
17. 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:
1. 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.
2. 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.
3. 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.
4. 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);
5. Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
18. The parent has a right to request the following types of school to be named in their child’s EHC Plan:
• A maintained school and any form of academy or free school (mainstream or special)
• Non-maintained special school
• An independent (special) school on a list approved by the Secretary of State for this purpose and on a published list. (SEND Code of Practice, paragraph 9.78).
19. Where a council asks for advice as part of an EHC needs assessment, the professional must respond within six weeks of the request (SEND Code of Practice, paragraph 9.41)
20. The Council’s Customer Feedback Policy says:
• It has two stages: one is a response by the relevant service. Stage two is a review by the Council’s complaints team
• If a customer is not happy with the stage one response, they can request a stage two review.
• The complaints team may decide the complaint can be reasonably resolved by a further consideration (response) under stage one.

What happened

2023

21. Y is autistic and has other SEN. Mx X requested an EHC needs assessment on 19 October 2023 when Y was three. He began attending the pre-school of an independent mainstream school (School A) in November. Y would be able to begin attending reception at School A from September 2024.
22. The Council agreed to carry out an EHC needs assessment on 29 November.

2024

23. The Council issued a draft EHC Plan on 29 February.
24. The Council consulted with Schools A, B and C on 1 March. Schools B and C are mainstream state primary schools.
25. The final EHC Plan was due on 7 March. The Council missed this deadline.
26. Mx X sent her comments on the draft Plan on 13 March.
27. Mx X complained to the Council on 11 May raising complaints about delay issuing the final EHC Plan and about failure to include all provision recommended by the OT, SLT and PT in the draft Plan.
28. The Council issued a second draft EHC Plan on 17 May. Mx X sent her comments on the 28th.
29. The Council issued a final EHC Plan on 31 May. It named a type of educational setting in Section I from September (mainstream primary).
30. The Council’s stage one complaint response on 3 June said:
• It was sorry for the not meeting the 20-week timescale for issuing the final EHC Plan. This was due to the incomplete, poor first draft and therefore needing a second draft. It was due to increased demand and staff sickness which has caused inconsistent quality in plans. The Council has a service improvement project which will address quality assurance of plans and additional staff had been recruited.
• It had issued a second draft; the delay in issuing this was due to the caseworker needing to get more information from the OT.
• It accepted the first draft Plan did not contain all the advice from the professionals listed in Section K of the Plan, particularly sensory and physical needs.
• The service still needed to get the consultation responses from School A and B. It had sent additional consultations with the revised draft Plan. School B had said it could meet Y’s needs.
• The Council would issue a final Plan no later than 4 June.
31. Mx X and officers exchanged emails; Mx X put a series of questions to officers and they responded to her main points. She also raised the complaints in paragraphs 1(b) to (d) and 2(b) to (c).
32. On 5 June, the Council issued another final EHC Plan naming School B as Y’s educational setting from September. Section F of the Plan set out the SEP Y needed:
• Six visits a year from an OT
• Close supervision moving around school
• Reasonable adjustments to take part in PE
• Up to twice weekly sessions of 30 minutes of functional skills delivered by support staff
• 3 sessions a year from an SLT
• Daily support from a member of staff through unstructured times like playtimes
• At least one 15 to 20 minute slot a day with a small peer group to improve social skills
• Child led time with a familiar adult for 5 to 10 minutes.
33. Mx X asked the Council’s complaints team to escalate her complaint to stage two. The Council declined. Instead, the Council issued a further stage one response. This said:
• The Council’s initial complaint response said it would be naming School B. But instead, it named a type of placement. This was because the caseworker needed to seek advice before issuing a final Plan naming School B. The Council was sorry for the uncertainty this had caused.
• The Council would not fund an independent mainstream school when it had a local maintained school that could meet Y’s needs.
• The maintained school was the most cost-effective option because the government did not provide independent schools with funding and so the Council would have to pay additional fees.
• School B confirmed it could deliver the provision in Section F within the funding allocation.
• The PT service had not responded to the request for advice. The Council apologised for not chasing this up and would follow it up as a priority. When the advice was received, it would be included in the Plan.
• An independent OT was currently overseeing Y’s OT needs.
• Social communication interventions would be delivered by school staff.
• Social care advice was requested but not received or followed up. Social care have since confirmed there are no social care needs.
• Privately commissioned OT and SLTs have worked with the Council to write Section B and F. Y has since been referred to the NHS services and on receipt of any NHS reports, the SLT and OT advice can be included in the plan through the annual review process. A review would take place in July.
• The additional stage one response was in accordance with the Council’s complaints procedure.
34. Mx X appealed to the SEND Tribunal against Y’s placement. She later added appeals against Sections B and F.

Was there fault and if so, did it cause injustice?

The Council delayed issuing Education Health and Care Plan (EHC Plan)

35. Y’s final EHC plan should have been issued no later than 7 March 2024 to have met the 20-week legal deadline. It was not issued until 31 May. The delay of 12 weeks is fault causing avoidable frustration, uncertainty and a delay in appeal rights and a loss of the SEP set out in Section F of Y’s EHC Plan.

The Council failed to consult with their preferred educational placement

36. Mx X had no legal right to request School A because it is not within the category of schools set out in Paragraph 9.78 of the SEND Code of Practice. School A is a mainstream independent school and is not on the Secretary of State’s approved list of independent schools.
37. Although there was no right to request School A, the records indicate the Council did consult with it on 1 March. So I do not uphold the complaint.

The Council refused to escalate the complaint to stage two of its complaints procedure.

38. The Council’s policy allows for a second response under stage one which means not all requests for a stage two review are accepted. There is no fault in refusing Mx X’s request to escalate to stage two. I have taken into account she was raising further issues, complaints, questions and seeking clarification of issues with officers in any event. This was appropriately dealt with by a further response from the service area at stage one.

The Council took nine months to complete a social care assessment

39. The SEND Code of Practice requires professionals to provide social care advice within six weeks of a request. The Council confirmed in the second stage complaint response that this did not happen. This was fault as it was not in line with the Code. However, the outcome was Y had no social care needs, so the injustice is limited to avoidable frustration.

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Agreed action

40. The Council apologised for the delay in issuing Y’s final EHC Plan and the avoidable distress and frustration caused by the delay in appeal rights and delay securing social care advice. This is a partial remedy. The Council will also make a symbolic payment of £250 within one month of this statement.
41. Y has also missed out on a term of SEP due to the delay in issuing his EHC Plan. In line with our published Guidance on Remedies, the Council will make a payment of £900 to reflect missed provision within one month of this statement. I have taken into account this was not a significant period of Y’s educational career (he was still in pre-school) and the relatively modest provision set out in Section F. In addition, Y’s pre-school had the benefit of some inclusion funding which it likely used towards additional provision for Y’s benefit.
42. The Council should provide us with evidence it has complied with the action in the last two paragraphs.

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Final decision

43. There was a delay of twelve weeks issuing Y’s final Education, Health and Care Plan and a delay in responding to a request for social care advice which caused avoidable frustration and a delay in appeal rights. The Council has apologised, which is a partial remedy. The Council will make a symbolic payment of £250 and a payment of £900 to reflect the loss of a term of special educational provision. There is no fault in the Council sending an additional complaint response at stage one, because this is in line with its policy.
44. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman