The Ombudsman's final decision
Summary: Mrs X’s complaint about failings in the education, health and care needs assessment and plan process that led her son to be out of education between 2014 and 2017 is late and there is no good reason to continue to investigate it.
The complaint
Mrs X complained Warwickshire County Council (the Council) failed her son Y in the education, health and care (EHC) needs assessment and planning process and failed to provide him with education between 2014 and 2017.
Mrs X also complained to the Council about the actions of its customer relations and children’s social care teams. I have not referred to those complaints because Mrs X confirmed she was satisfied the Council’s findings on those complaints and with the remedy it provided.
The Ombudsman’s role and powers
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) Our Guidance on Jurisdiction advises investigators to consider the 12-month period flexibly and not to enforce time bars rigidly. It says it may not have been reasonable for a person to complain within 12 months if they were ill, were complaining to the Council, or did not allow the matter to rest for more than a few months.
How I considered this complaint
I considered Mrs X’s complaint to us and complaint correspondence to and from the Council. I discussed the complaint with Mrs X.
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 law A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. An EHC Plan is issued following completion of an EHC needs assessment. The Plan sets out the child’s needs and what arrangements should be made to meet them. The council is responsible for making sure that arrangements specified in the EHC plan are put in place.
There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. 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 EHC Plan has been issued.
Councils must review an EHC Plan each year. They can get schools to carry out an annual review meeting. After the review meeting, the council should notify the parents about whether it will maintain, amend or stop the EHC plan. If there is a proposal to amend the plan, the council must send an amendment notice with details of the amendments for comments. Following comments, the council must issue a final amended EHC plan.
There are legal timescales for completing the EHC needs assessment and producing a final EHC Plan and for reviewing and amending a plan. Where we investigate complaints about the EHC process, we may find a breach of these timescales to be fault.
What happened
Background
I have taken the key events from Mrs X’s chronology and from the Council’s independent investigation report of September 2021.
Y has a rare genetic disorder and has experienced mental ill health as a result. He stopped attending primary school in the Autumn term of 2014 because of ill-health and anxiety. He remained out of school until September 2017 when he started going to an independent specialist secondary school part time.
Chronology Mrs X asked for an EHC needs assessment in July 2015. The Council did not proceed with an assessment. Mrs X did not appeal to the SEND tribunal. She told me this was because the Council did not issue a response declining the EHC needs assessment and said they needed to complete two terms of ‘assess, plan, do, review’ (this is an approach to supporting children with SEN which is led by schools). Mrs X also told me Y had not attended school for at least six months.
Mrs X asked the Council for an EHC needs assessment in September 2016. The Council decided to carry out an EHC needs assessment at the end of October. The Council issued a draft EHC plan in January 2017, a notice to amend in March with a further draft EHC plan and a final EHC plan in May 2017. Mrs X did not receive the final EHC plan.
The Council’s independent investigation report indicates Mrs X had support from the SEN advice and support service at meetings from April 2017 Y started attending secondary school in September 2017. He only attended for one to two hours a week at first because of ongoing health problems.
In February 2018, Mrs X told me Y had no final EHC plan in place as far as she was aware (because she never received the May 2017 final plan).
Mrs X complained to the Council in February 2018. The Council responded saying it had issued a final EHC plan. Mrs X escalated her complaint in May. The Council appointed an independent investigator who upheld the complaints in August 2018.
Y’s final EHC plan was issued in October 2018 and there was an annual review in January 2019 Mrs X complained to the Council in May 2019 about the failure to issue an amendment notice or draft EHC plan following the most recent annual review meeting. The Council sent these documents shortly after receiving the complaint. The Council apologised for the delay in June. It also sent a second amendment notice and further draft EHC plan. The Council sent the final EHC plan in July 2019.
Mrs X complained to the Council in October 2019.
Mrs X contacted us in January 2020. We do not have a record of the advice she received because of our records management process. Mrs X noted in her chronology our adviser said she should complain to us after the Council had completed both stages of its complaints’ procedure.
The Council’s first complaint response was in January 2020. Mrs X said she did not see it until March because it went into her spam email folder. Unhappy with the response, she asked the Council to move to the second stage of the complaints’ procedure in March.
In June, the Council told Mrs X it had appointed an independent investigator, but it said there may be a delay in providing a second complaint response because of the lockdown.
Also in June, the Council issued an amendment notice and a draft EHC plan.
In August, Mrs X contacted us and the Parliamentary and Health Service Ombudsman (she also complained about NHS services). Our joint working team assessed Mrs X’s complaints about council and NHS services and we issued a decision statement in December 2020 which said we would not investigate because the Council had not completed the internal complaints process.
The Council’s independent investigator reported in September 2021. The report upheld most of Mrs X’s complaints about the EHC process and recommended ‘compensation for reduced life outcomes, for additional support in adulthood to access missed education and for inconvenience’ Mrs X complaint to us in December 2021.
The Council’s response to the independent investigation report in January 2022 apologised for the failure to deliver Y’s education between 2014 and 2017. It declined a payment for Y’s lost education.
Comments from Mrs X I asked Mrs X why she did not complain to us within 12 months of Y being out of school. Mrs X said “Throughout this entire process, the LGO have repeatedly told us to exhaust local complaints processes. As you will see, it has taken almost two and a half years years since my recorded call in January 2020 to reach you. I also called LGO in 2018 to ask about that complaint and again in 2019, but on those occasions those calls were not logged as I didn't know they needed to be and I hoped the local process would end up with satisfactory resolution. My son was extremely unwell for more than three years…... At that time, the last thing on our mind was raising a formal complaint. We were literally trying to survive. I was extremely incapacitated due to stress and had significantly poor mental ill health between 2016-2018” Mrs X also told me: They were in a tangled web between 2014 and 2017 and had no idea they needed to complain and relied on professionals supporting them.
Their ability to appeal to the SEND Tribunal was not an option until the Council issued the final Plan in 2019 Y was seriously ill with panic attacks and was in hospital because of his immune system They hung on hoping professionals would do their job.
Final decision
Mrs X complains about failings between 2014 and 2017 affecting her son’s education. She told us she first contacted us in 2018 and 2019 and we gave informal telephone advice for her to complete the Council’s complaints procedure. This advice was not recorded because we do not record general advice where someone has not completed a complaint form. But there is no reason for me to doubt Mrs X. When we give general advice, we do not know all the circumstances of a complainant’s case and so Mrs X may not have been told about the 12-month guideline. However, information on our website clearly tells members of the public that we have a 12-month timeframe as a starting point when we are looking at whether or not to investigate a matter. So we would expect Mrs X to have complained to us by 2018 at the latest about events from 2014-2017. She did not complain until 2020.
Even the latter point of 2017 was two years later than 12-month period we would usually start from. In line with our guidance, I have considered whether there are grounds for me to exercise discretion to investigate some or all of the period between 2014 and 2017. I have taken into account: Mrs X’s mind was focussed on obtaining support for Y in the first couple of years. Y was very unwell Mrs X was also unwell She may not have been aware of her right to complain initially.
There were delays in the Council’s complaints process but some of this delay was due to the pandemic and all of it post-dates the injustice to Y Mrs X was given verbal advice by our advice team that she needed to complete the Council’s complaints process.
I also note: The injustice to Y is not continuing in that he has had an appropriate placement since September 2017.
Mrs X had the advice and support from the SEN advice service in 2017 and they likely had awareness of our role We are less likely to be able to gather evidence which presents a full, reliable picture given the passage of time from 2014.
Having considered the factors in paragraphs 32 and 33, I consider it was reasonable for Mrs X to focus on seeking a solution to her concerns outside the complaints’ process until 2017 when the draft EHC plan was issued. At that point, I consider it reasonable for her to have sought advice from the SEN advice and support service (which was already supporting her) on her rights to complain to us and other rights (such as the right of appeal to the SEND tribunal).
For the reasons given in paragraphs 31 to 34, Mrs X’s complaint about the Council’s failings in the EHC needs assessment and plan process leading to a failure to provide her son Y with education between 2014 and 2017 is late. I consider it was reasonable for her register a complaint with us about the matter in 2017 and there is no good reason for me to continue to investigate it.
Investigator's decision on behalf of the Ombudsman