The Ombudsman's final decision
Summary: Mr X complained the Council incurred delays when deciding whether to issue an Education, Health and Care Plan for his son. He says this caused avoidable stress, a loss of provision for his son and financial loss to his family. We found no fault in this matter and have concluded our investigation.
The complaint
Mr X complained the Council incurred delays when deciding whether to issue an Education, Health and Care plan for his son. He says this caused avoidable stress, a loss of provision for his son, and financial loss to his family.
Mr X also complained about the content of his son’s Education, Health and Care plan.
What I have investigated I have investigated the complaint referred to in paragraph one. I have not investigated the complaint referred to in paragraph two. The final section of this statement explains my reasons for this.
The Ombudsman’s role and powers
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) 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) 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 Special Educational Needs and Disability Tribunal is a tribunal that considers special educational needs.
The courts have said where a complainant has appealed to the tribunal, we cannot investigate a council’s decision relating to the provision of alternative education pending the appeal, nor seek a remedy for the council’s failures.
A child with special educational needs may have an Education, Health and Care plan (EHC plan). This 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 education. Only the tribunal can do this.
If we are satisfied with a council’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 considered the information provided by Mr X regarding his complaint.
I have considered the information provided by the Council regarding Mr X’s complaint.
I have also considered the relevant legislation and statutory guidance as set out below.
Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
What I found
Special Educational Needs and Education, Health and Care plans A child or young person has Special Educational Needs (SEN) if they have a learning difficulty or disability which calls for special educational provision to be made for them. Most children have these needs met within local early years, mainstream school or college settings. Support at this level is called SEN support.
Some children or young people may require an Education, Health and Care (EHC) assessment for the local authority to decide whether it is necessary to make provision in accordance with an EHC plan.
The purpose of an EHC plan is to make special educational provision to meet the child or young person’s special educational needs. It is also to secure the best possible outcomes for them across education, health and social care and, as they get older, prepare them for adulthood.
The Children and Families Act 2014, the Special Educational Needs Code of Practice 2015 (‘the Code of Practice’) and the Special Educational Needs and Disabilities Regulations 2014 provide detailed guidance to councils about how they should manage the process of: assessing children and young people for an EHC plan; how to decide whether to issue a plan; the content of the plan, and how to implement, monitor or cease a plan.
EHC assessments If a parent asks for an EHC needs assessment, councils must decide whether one is necessary and tell the parent of their decision within six weeks of receiving the request. If a council decides not to conduct an EHC assessment, it must tell the parent about their right to appeal to the SEND tribunal. (9.11 and 9.19 SEND code of practice 2015) If a council conducts an assessment but decides it is not necessary to issue an EHC plan, it must tell the parent of its decision within a maximum of 16 weeks from the request for an EHC needs assessment. Councils should tell parents about their right to appeal to the SEND tribunal. (9.57 SEND code of practice 2015) We can consider the EHC assessment process up to the point a right of appeal arises.
What happened This chronology includes key events in this case and does not cover everything that happened.
Mr X’s son has a range of needs which impede his learning. On 22 July 2019, Mr X asked the Council to carry out an EHC needs assessment for his son. Mr X set out the reasons for his request and provided the Council with supporting information.
The Council provided its decision letter to Mr X on 2 September 2019 and told Mr X it would carry out an EHC needs assessment. The Council said it would request additional information as part of the assessment, including advice from several third-party professionals. It said it would decide whether or not to issue an EHC plan once it received the advice. The Council said it would make its decision within 16 weeks from the date it received the initial request for an EHC needs assessment.
The Council says it wrote to Mr X on 31 October 2019 to tell him of its decision not to issue an EHC plan. The Council’s letter gave the reasons for its decision and told Mr X about his right to appeal to the SEND tribunal if he disagreed with it.
Mr X says he did not receive the Council’s decision letter until 15 November 2019.
What happened next Mr X disagreed with the Council’s decision not to issue an EHC plan and appealed to the SEND tribunal in December 2019. He says the Council conceded the appeal in March 2020 and issued a draft EHC plan in April 2020.
Mr X was unhappy with the content of the draft EHC plan and provided the Council with comments about the plan in May 2020.
The Council issued the final plan in June 2020.
Mr X remained dissatisfied with the content of the final EHC plan and appealed to the SEND tribunal in June 2020.
Mr X says the Council agreed to make some changes to the plan before the tribunal hearing. He says the tribunal upheld his request for further amendments in November 2020.
Mr X complained to the Council about the EHC process in February 2021. The Council acknowledged the complaint but said it could not investigate complaints for which a remedy through the tribunal was available. It said the matters complained about were linked to the matters considered by the tribunal, and it signposted Mr X to us.
Mr X remained dissatisfied with the Council’s response and brought his complaint to us.
Analysis – is there evidence of fault by the Council?
I have exercised discretion in investigating Mr X’s complaint back further than 12 months. This is because Mr X brought his complaint to us within 12 months of the tribunal decision.
Mr X complains the Council incurred delays when deciding whether to issue an Education, Health and Care plan. Having reviewed the information provided, I consider there is no evidence of delay by the Council regarding this matter.
As stated at paragraph 19, councils must decide if an EHC needs assessment is necessary and tell the child’s parent of this decision within six weeks of receiving the request. The evidence shows Mr X requested an assessment on 22 July 2019 and the Council issued its decision letter on 2 September 2019. The Council therefore issued its decision letter within the timescale specified by the Code of Practice.
Mr X says he received the Council’s letter telling him about its decision not to issue an EHC plan on 15 November 2019. He says the Council delayed providing its decision as it should have done so within ten weeks of his original request.
However, as stated at paragraph 20, councils must tell the child’s parents of its decision not to issue an EHC plan within a maximum of 16 weeks from the request for an EHC needs assessment.
I have seen a copy of the Council’s decision letter dated 31 October 2019. This is within the 16 weeks specified by the Code of Practice. The Council says it issued the letter on this date.
I acknowledge Mr X says he did not receive the letter until 15 November 2019, outside the 16 week timeframe. The Council says Mr X telephoned on 13 November 2019 to ask if it was going to issue a draft EHCP. The Council says it resent its decision letter on the same date.
I have seen no evidence to indicate the Council was late in issuing its decision letter to Mr X. While I have no reason not to believe Mr X’s explanation that he received the letter on 15 November 2019, the same applies to the Council’s explanation that it sent the letter on 31 October 2019. Without any independent evidence, I am unable to conclude the Council incurred delays in issuing its decision letter.
As I have seen no evidence the Council delayed issuing its decision letters dated 2 September 2019 and 31 October 2019, there is no evidence the Council incurred delays when deciding whether to issue an Education, Health and Care plan. Therefore, there is no evidence of fault by the Council in this matter.
Final decision
I have found no evidence of fault regarding this complaint and I have concluded my investigation.
Parts of the complaint that I did not investigate I have not investigated Mr X’s complaint relating to the content of the EHCP. This is because Mr X appealed to the First-tier Tribunal (Special Educational Needs and Disability) regarding his dissatisfaction with the content of the EHCP.
Investigator's decision on behalf of the Ombudsman