The Ombudsman's final decision
Summary: Mrs X complains about the Council’s handling of her child’s (Child Y) special educational needs. The Council took too long to issue Child Y’s Education, Health and Care Plan, respond to requests for a personal budget and complaints. The Council agrees to apologise, make a payment and meet with Mrs X to discuss and agree Child Y’s personal budget without delay. The Council will also review its systems for monitoring complaint responses.
The complaint
Mrs X complains about the Council’s handling of her child’s, Child Y, special education needs. Mrs X complains the Council: took too long to finalise Child Y’s Education, Health and Care Plan (EHCP); failed to act on professional about the support and provision Child Y needed to continue attending school, leading to Child Y suffering an avoidable mental health breakdown (between January and April 2021); and, failed to provide a personal budget to help fund the support Child Y needs.
Mrs X says the Council’s responses to her complaints about its handling have been delayed and have failed to acknowledge the significant impact and distress caused by its faults and delays.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) 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.
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) 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)
How I considered this complaint
I have spoken to Mrs X and considered the information she has provided in support of her complaints.
I have considered the information the Council has provided in response to my enquiries.
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.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant guidance Special Educational Needs A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
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: where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment; 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; 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); and councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: the child’s education 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 appropriate for a satisfactory assessment.
The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
Those consulted have a maximum of six weeks to provide the advice.
The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47) Personal budgets and direct payments A personal budget is an amount of money identified by the council to deliver provision set out in an EHCP. The council can identify elements of the provision which can be made via a direct payment. Councils must ensure that children and young people with an EHCP receive a level of support which will help them “achieve the best possible educational and other outcomes”.
A child or young person’s parents have a right to request a personal budget, when the council has completed an EHCP needs assessment and confirmed that it will prepare an EHCP. They may also request a personal budget during a statutory review of an existing EHCP.
Where the SEND Tribunal can consider the special educational provision set out in the EHCP, there is no appeal against a decision not to provide a personal budget or direct payment. However, if a local authority refuses a direct payment it must give reasons in writing and tell the parent of the child or young person they have a right of review in accordance with section 7 of the Special Educational Needs (Personal Budgets) Regulations 2014 (“the 2014 Regulations”).
Councils must agree the provision to be made in the EHCP with the parent/young person and help them decide if they want a personal budget. The funds allocated must be sufficient to deliver the agreed provision and the parent or young person must agree to a personal budget/direct payment.
Appeal rights There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.
The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
Child Y Child Y has special educational needs. At the end of January 2021, Child Y received a diagnosis of Autistic Spectrum Disorder (ASD). In late May 2021, Child Y received a further diagnosis of Pathological Demand Avoidance (PDA). Child Y also has resulting issues with their anxiety and sleep resulting in school refusal.
Mrs X started to seek help for Child Y in early 2020 when a referral to the Child and Adolescent Mental Health Service was made for Child Y.
Mrs X’s request for an EHC assessment and plan Mrs X made a request to the Council for an EHC assessment for Child Y on 23 October 2020. This was following difficulties with getting Child Y back to school after the COVID-19 lockdown.
The Council refused Mrs X’s request for assessment on 8 December 2020. It explained that it considered Child Y’s mainstream school could meet their needs without an EHCP. The Council also explained how Mrs X could challenge the Council’s decision through mediation and tribunal appeal.
Mrs X submitted further professional reports about Child Y’s needs to the Council following her appeal to the SEND Tribunal. On 18 January 2021, the Council conceded and agreed to assess Child Y for an EHCP before the SEND Tribunal hearing.
Mrs X provided the Council with an Education Psychologist’s (EP) report for Child Y completed in December 2020. She also provided a Speech and Language Therapy (SALT) assessment to the Council in early February 2021.
The Council sent Mrs X the draft EHCP on 27 April 2021 for comments and amendments. Mrs X responded the same day and provided the Council with an updated EP assessment for Child Y, who had suffered a mental health crisis during January to April 2021. Mrs X asked the Council to update the provision within the draft EHCP to reflect the EP’s new recommendations.
Mrs X provided further comments and suggested amendments to the draft EHCP to the Council on 10 May 2021. She asked the Council again to consider and include the provision recommended in the latest EP report. The Council informed Mrs X it was too late to include the EP’s new report to the draft EHCP. The Council also suggested a different school placement to the one Mrs X preferred and said it would consult that school and the mainstream school Child Y had previously been attending.
Mrs X contacted the Council on 9 June 2021 to ask it to consider providing alternative provision to Child Y as the EP had recommended they did not return to their original mainstream school due to the significant damage this was causing to Child Y’s mental health.
On 24 June 2021, the Council issued the final EHCP for Child Y. It explained to Mrs X that Education Otherwise Than At School (EOTAS) was not suitable as the provision in section F of the EHCP was for a school placement. The Council explained to Mrs X it had issued the final EHCP without naming a specific school placement to enable Mrs X to exercise her appeal rights to the SEND Tribunal.
Mrs X lodged an appeal with the SEND Tribunal about the content of the EHCP in August 2021. In the meantime, the Council had agreed to review the EHCP to provide EOTAS to Child Y. The final EHCP detailing the revised provision for Child Y was agreed at SEND Tribunal hearing on 12 January 2022 and issued to Mrs X on 25 January 2022.
Was there fault causing injustice?
Once the Council had conceded to complete the EHC assessment following Mrs X’s appeal, the final EHCP should have been issued by 27 April 2021. The Council took an additional eight weeks and two days to issue its final EHCP in this case.
This delay was fault. In response to Mrs X’s complaints about the delay, the Council has offered her an apology and payment of £400 in recognition of the delay’s impact on Child Y and the time and trouble Mrs X has been put to in chasing this up. This in my view is an appropriate remedy to the injustice caused.
I am unable to consider any further delay with the subsequent EHCP the Council produced because Mrs X appealed to the Tribunal. As the nature of the provision, Child Y’s needs and the placement were issues of concern in Mrs X’s appeal, are inextricably linked to this delay, I cannot investigate this element of Mrs X’s complaint for the reasons explained in paragraph 22 above.
Failure to act on professional advice Mrs X complains the Council’s delay and failure to act meant the advice from the EP’s first assessment report for Child Y was not implemented in time to avoid their mental health breakdown between January and April 2021. She also complains that the Council and Child Y’s mainstream school should have implemented the EP’s recommendations straight away.
Both the Council and Child Y’s mainstream school explained to Mrs X that they could not implement the provision recommended by the EP until the EHCP was finalised. Both also explained the other steps they were taking to help support Child Y’s return to school.
Was there fault causing injustice?
Mrs X received the EP’s first report in December 2020 and sent a copy to the Council in early January 2021. Mrs X says if the Council had not initially refused to assess Child Y for an EHCP, the 20 week target for completion would have been much earlier on 12 March 2021.
As the Council completed its assessment decision within the statutory timescale of six weeks, I do not find the Council at fault due to delay. The time taken for Mrs X’s appeal to the Tribunal to go through is out of our jurisdiction to investigate for the same reasons set out in paragraphs 22 and 36 above.
Even if the Council had completed and issued the final EHCP for Child Y on 12 March 2021, it appears likely this would have been too late to have avoided the mental health breakdown Child Y sadly suffered from January 2021. Completion of the EHCP on 27 April 2021 would also have been unlikely to have changed this situation.
As a result, I cannot establish that any action by the Council directly caused Child Y’s mental health breakdown or could have prevented it.
Failure to provide a personal budget Mrs X first started asking the Council for a personal budget to obtain the provision Child Y needed on 10 May 2021, when she also provided her comments on the draft EHCP. The Council told Mrs X on more than one occasion that her request was being considered by a Council Panel.
Discussion about a personal budget for Child Y went on until January 2022, when the SEND Tribunal issued a consent order following Mrs X’s appeal.
The Council accepted it should have been funding the provision Mrs X was paying for since July 2021. It issued a backdated payment for this to Mrs X on 4 March 2022 but did not explain what the payment was for until a week later. The backdated payment covered Child Y’s provision from July to December 2021.
The Council then offered to make a further payment to Mrs X to cover Child Y’s provision from January to July 2022. Mrs X asked to meet with the Council to discuss this as she had concerns the funding offered would not cover all the provision specified in Child Y's existing EHCP. The Council agreed to meet with Mrs X at the end of March 2022 to discuss the costs involved in securing provision for Child Y.
On the day of the meeting, the Council contacted Mrs X to explain it was cancelling the meeting as Child Y’s personal budget was one of the issues covered by our investigation. Since then, Mrs X has been trying to persuade the Council to reschedule a meeting with her so they can finalise the funding for Child Y’s provision.
Was there fault causing injustice?
In response to our enquiries, the Council told us that Mrs X first requested a personal budget for Child Y’s provision in February 2022. Evidence from Mrs X of her contact with the Council clearly shows that she has been requesting a personal budget since May 2021.
The Council was at fault for not progressing Mrs X’s requests for a personal budget for a considerable period of time. If the Council had acted on Mrs X’s initial requests in May 2021, it is possible the personal budget could have been agreed and in place from the point provision started in July 2021. This delay was avoidable and has put Mrs X to unnecessary time and trouble, which the Council should remedy.
I am also concerned at the Council’s decision to halt discussions with Mrs X about Child Y’s personal budget once we became involved in investigating Mrs X’s complaints. While there is scope for councils to halt certain action while we investigate, this is not one of the areas where I consider this was an appropriate step for the Council to take.
I note the Council’s point that it has offered to make a considerable payment to Mrs X to cover Child Y’s provision from January to July 2022. However, Mrs X has concerns that this payment does not cover all the provision her child needs. Given the Council must obtain Mrs X’s agreement on the personal budget and what it covers, it cannot in my view proceed without meeting with her. Failure to do so would remove Mrs X’s right to decide if she wants a personal budget, which is something the regulations say it must allow for.
The Council’s delay in progressing Mrs X’s requests for a personal budget and its decision to then halt the process of discussing this with her was fault. This has caused Mrs X and the rest of her family injustice. Mrs X says she has had to borrow money to fund Child Y’s provision in the meantime, which has placed an unnecessary financial strain on her family.
I have recommended action below to address this element of Mrs X’s complaint.
Complaint handling delay The Council’s complaint procedure for SEND matters states it will respond to stage one complaints in 10 working days and a maximum of 20 working days for complex cases. For stage two complaints, the procedure says the Council will respond in 25 workings days and a maximum of 65 working days for complex cases. At both stages, the Council’s policy states it will inform the complainant if the longer timescale is needed.
Mrs X made her first complaint to the Council about its handling of Child Y’s EHCP on 3 May 2021. She contacted the Council again on 19 May, 23 and 25 June 2021 to chase up a response to her stage one complaint. The Council apologised for the delay in responding.
On 26 August 2021, Mrs X asked the Council to escalate her complaint to stage two due to the lack of response to her stage one complaint. The Council contacted Mrs X the following day to ask for more information about her concerns. The Council sent its stage one complaint response to Mrs X on 1 September 2021.
Mrs X asked the Council again to escalate her complaint to stage two on 10 September 2021. The Council responded on 18 October 2021. It apologised for the delay.
Was there fault causing injustice?
The Council was at fault for not following its own policy for SEND complaints. It did not inform Mrs X that it intended to apply the maximum response timescale for both stages of her complaints. It then took the Council considerably longer to respond to Mrs X’s stage one complaint – a total of 84 working days.
The Council’s response to Mrs X’s stage two complaint took 36 working days to complete.
The delay at both stages caused unnecessary inconvenience and frustration to Mrs X. She was put to avoidable time and trouble in repeatedly chasing the Council for its responses. My recommended action below seeks to remedy the injustice caused to Mrs X by the Council’s delay.
Agreed action
To remedy the injustice caused by the faults described above, within one month of my final decision, the Council has agreed to: apologise to Mrs X for the uncertainty, time and trouble caused to her and her family by its faults; make a payment of £1,000 for the benefit of Child Y in recognition of the delays in finalising the first EHCP and personal budget; make a payment of £200 to Mrs X to remedy the frustration caused by the delays in complaint handling; and, arrange to meet with Mrs X to discuss and agree Child Y’s personal budget.
Within three months of my final decision, the Council will also review its systems for monitoring complaints to ensure it better tracks their progress and the timeliness of responses.
The Council should provide us with evidence to show it has completed the above recommendations.
Final decision
I have completed my investigation and uphold Mrs X’s complaint. There was fault by the Council which caused injustice to Mrs X and it has agreed to take action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman