The Ombudsman's final decision
Summary: There was fault the Council delayed finalising an Education, Health, and Care Plan, after it agreed to assess Mrs X’s child. That delay caused Mrs X an injustice because of avoidable uncertainty she then had about her child’s placement. The Council have accepted fault and apologised for the delays, and this is an appropriate remedy for Mrs X’s injustice here. Mrs X also complained the Council did not provide alternative provision, while her child was out of school. On the information I have seen, there is no fault in the Council’s response.
The complaint
Mrs X complained about delays and the Council’s handling of the Education, Health, and Care (EHC) needs assessment process for her child, B. More specifically, Mrs X complained the Council: Failed to issue the final EHC Plan within the statutory timescales; failed to seek advice and information in line with a request, and; acted unethically when it challenged an education psychologist (EP) report.
Finally, Mrs X said the Council failed to arrange suitable alternative provision, including special education provision (SEP) for B, while they were not going to school.
Mrs X said because of the Council’s poor handling of B’s case, they have missed out on a suitable education, and this has had a significant impact on their social development. Mrs X also said the situation affected her ability to work and has caused her significant stress.
The Ombudsman’s role and powers
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) 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) The law says we cannot normally investigate a complaint when someone has a right of appeal, reference, or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended) When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
We spoke to Mrs X during an earlier complaint procedure and have considered the information she provided.
I considered the Council’s comments and the documents it provided.
I considered the special educational needs and disability (SEND) code of practice which councils have a duty to follow.
Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider any comments before making a final decision.
What I found
What should have happened 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 SEND Tribunal or the council can do this.
Timescales and process for EHC assessment 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 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).
How case law applies when appeal rights have been engaged The courts have established 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) This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
Injustice we cannot remedy because a right to appeal to tribunal was used Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) give the tribunal the power to do the following: Regulate its own procedure. The Tribunal Procedure Rules give the tribunal extensive case management powers.
Take ‘such action as it considers just’ if a party fails to comply with a requirement in the Tribunal Procedure Rules, a Practice Direction or a direction by the tribunal.
Make an order for costs if it considers a party has acted unreasonably in bringing, defending or conducting proceedings.
Require the council’s response to the appeal to include the views of the child or the reasons why the council has not asked for those views.
General section 19 duty Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
What happened Education, Health, and Care needs assessment In early March 2021, Mrs X asked for the Council to carry out an EHC needs assessment on B. The Council initially refused to assess B and Mrs X appealed to the SEND Tribunal about the Council’s decision.
In June, the Council reversed this decision and in late July, the SEND Tribunal issued a consent order, saying the Council would assess B as to whether they needed an EHC Plan.
Mrs X told us that B was moving to secondary school in September 2021 and was concerned any delay in their EHC needs assessment, would affect a smooth transition from their previous school.
In October, Mrs X made a complaint to the Council. She highlighted the delays in the process. She also complained the Council had not properly taken advice and B’s caseworker had misled an internal Council panel about an EP report.
In late November, the Council issued a final EHC Plan and Mrs X appealed to the SEND Tribunal about the Council’s decision on the school it named (section I). She also appealed the contents of section B and the SEP (section F).
Alternative provision Mrs X told the Council in September 2021, that B was not going to school. In October, the Council made two offers of provision, which it said would amount to 15 hours provision on a one-to-one basis, that B could access while they were out of school.
The Council said it initially commissioned one of these providers to start in mid to late October, but Mrs X asked for this to be delayed until after the completion of a separate mental health assessment.
The Council said in early November, Mrs X asked for a different provider, because she had an interim update on B’s mental health assessment. The evidence shows the provider met with B for an initial assessment in late November and the provision was scheduled to start in early January 2022.
Mrs X’s complaint and the Council’s response Mrs X initially complained to us in 2022, and in 2023, after the SEND Tribunal, the Council asked us to hold on investigating Mrs X’s complaint, to allow it to try and resolve her initial complaint.
In its response to Mrs X, it gave explanations for the matters she complained about. It accepted there had been a delay of four weeks in finalising B’s final EHC Plan and apologised it missed the statutory deadlines. It said it delayed finalising the EHC Plan, to allow time for it to add amendments, because it was waiting for a mental health assessment Mrs X had obtained.
My findings
Education, Health, and Care needs assessment For the Council to have complied with the legislation, it should have issued B’s final EHC Plan by late October 2021, and it did not do so until four weeks later. That is fault and it caused Mrs X an injustice because of avoidable uncertainty she had about the Council’s eventual decision and a delayed right of appeal.
Because the Council has offered an explanation why this was the case and it has apologised, I find the Council has already remedied Mrs X’s injustice.
Furthermore, on balance, I do not consider there was any injustice to B caused by lost SEP, in the Council’s delay in issuing a final EHC Plan, which should have been available by late October. The available evidence shows the Council were in discussion with Mrs X about suitable provision before that time, while B was not going to school and Mrs X declined this provision.
Because of the restrictions that legislation and case law places on our powers, as outlined at paragraphs six and 15, I cannot investigate Mrs X’s complaint about how the Council decided what advice to obtain, or how it considered an EP report (complaint b) and c)).
Alternative provision There are restrictions on the period I can consider about how the Council put its mind to its duties here (paragraph 16). Because Mrs X appealed sections, B, F and I, I cannot investigate the time after the Council issued a final EHC Plan in late November 2021, because the reason for non-attendance was linked to the parent’s disagreement about the SEP and the educational placement.
When Mrs X told the Council that B was out of school, the Council has a general section 19 duty, to arrange suitable education at school or elsewhere. The Council have provided an explanation about how it considered its duties here and on the evidence I have seen, there is no fault.
Final decision
I have completed my investigation with a finding of fault, causing an injustice, but because of the steps already taken by the Council, there is no remaining unremedied injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman