The Ombudsman's final decision
Summary: The Council delayed issuing a final EHC plan for Mrs X’s son. It also failed to respond to Mrs X’s communications in a timely manner and wrongly published a draft process on its website which it does not follow. The Council has agreed to make a payment to Mrs X and to take action to prevent similar failings in future.
The complaint
Mrs X complains the Council delayed issuing an education, health and care plan for her son, Y. She says the Council’s handling of the plan, and the delay, meant Y missed out on a school place and caused the family distress. She would like the Council to apologise and improve its practices and the way it communicates with parents.
What I have investigated I have investigated the delay in issuing a final EHC plan for Y. The final section of this statement contains my reasons for not investigating the rest of the complaint.
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) 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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal.
We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. (Local Government Act 1974, section 24A(6), as amended) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
Under our information sharing agreement, we will share the final decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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 complaint made by Mrs X and the documents she provided; discussed the issues with Mrs X; considered the Council’s comments about the complaint and the documents it provided in response to our enquiries; and given the Council and Mrs X the opportunity to comment on my draft decision.
What I found
Education, health and care plans A child with special educational needs may have an Education, Health and Care (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, or name a different school. Only the tribunal can do this.
The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
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.
When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to: make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan; and require the council to arrange a meeting between them and an officer of the council at which the draft plan can be discussed. (Special Educational Needs and Disability Regulations 2014) The Code says a council must consult the governing body of a school and consider their comments carefully before deciding whether to name it in the child’s EHC plan, sending the school a copy of the draft plan.
The Council produced a process flowchart which it shared on its website. This said a draft EHC plan would be sent to parents for consideration, and they would be given 15 days to respond. Caseworkers should offer to discuss any queries parents have. The flowchart said once the draft EHC plan was agreed, the Council would consult with the preferred school for a place with a response due in 15 days.
What happened Y is five years old and is autistic. In early November 2020, Mrs X asked the Council to carry out an education, health and care needs assessment. A final EHC plan should have been issued by 26 March 2021.
The Council sent Mrs X a draft of Y’s EHC plan on 19 March. Mrs X says there was no covering letter or instruction with the draft. On 24 March, Mrs X emailed Y’s caseworker asking her to send the reports which were used to draft the plan and for a co-production meeting. Mrs X asked the Council not to send the draft EHC plan to any schools.
Mrs X says she received two of the three documents she had requested but did not receive an acknowledgement of her request for a co-production meeting or for the plan not to be disclosed. Mrs X says she left a voicemail for a manager on 29 March requesting a call back but did not receive one.
On 6 April, Mrs X received the draft EHC plan again, with a covering letter and appendices. She also received an email from her preferred school for Y, School A, saying it had received consultation paperwork and Y’s EHC plan. Mrs X was unhappy the school had been sent the draft plan and contacted the caseworker.
The caseworker and their manager apologised for issuing the draft plan and for not returning her call. They said they would ask the schools to destroy the version of the EHC plan which had been sent.
A co-production meeting took place on 23 April and it was agreed changes would be made to the EHC plan. Mrs X and Y’s teacher provided their amendments by 29 April but Mrs X did not receive an updated draft EHC plan until 22 May. Mrs X agreed the plan could be issued to schools for consultation. The Council began consulting with schools on 3 June.
School A responded on 29 June and said it could not meet Y’s needs. It said it did not have trained staff who could support him and did not have time to recruit the necessary staff and train them before the end of term. It was also unsure if it could offer the ‘calm, quiet withdrawal area’ which Y required.
Mrs X complained to the Council in July 2021. She was unhappy with the time taken to complete the EHC plan, the lack of contact and support from the Council and the effect this had on Y’s school place. She said the information contained in the draft EHC plan which had been shared with School A was outdated and factually incorrect, and jeopardised Y being offered a place. She said the Council had not followed the process set out in the flowchart referred to in paragraph 15.
The Council responded in August. It said Y’s caseworker had asked the Council’s business support team to issue the draft EHC plan to Mrs X and formally consult with her preferred schools on 19 March. It said this was its normal practice. It said Mrs X requested a copy of the draft EHC plan and the caseworker decided to send it because she was aware there were delays in the business support team issuing draft plans. The Council said the intention was to give Mrs X more time to consider the draft plan. It said the draft plan was formally issued on 6 April.
The Council said the caseworker was on leave when Mrs X emailed on 24 March to ask for a co-production meeting. The Council said that on her return, the caseworker asked the schools consulted to disregard the paperwork which had been sent because a co-production meeting was scheduled.
The Council said the flowchart did suggest consultation with schools would follow a co-production meeting. The Council said this was the process it aspired to, but the flowchart was a draft process which had been published online in error and had now been withdrawn. It apologised to Mrs X for any confusion this had caused but said there did not need to be agreement about the content of a plan for it to be finalised.
The Council said it had further discussions with School A in July about Y starting in January 2022 but the school had said it could not meet Y’s needs. The Council said it had spoken to the school again and expressed its concerns about the school’s consultation response not being in line with the Code. The school continued to have reservations about meeting Y’s needs but agreed to reconsider the request for a place for Y.
The Council accepted the final EHC plan was overdue. It said the service had experienced ‘extraordinary’ demand coupled with changes in staffing due to a recent restructure affecting service delivery. It apologised but said best endeavours had been made to complete the process as swiftly as possible.
The Council issued a final EHC plan for Y in early September 2021, naming a local mainstream primary school.
Mrs X asked the Council to investigate her complaint at the next stage of its complaints procedure. She remained unhappy about the way the Council had issued the draft EHC plan, that it had disclosed the plan without her consent, School A’s decision not to offer Y a place and the time taken to finalise the plan.
The Council responded in October. It reiterated its response at stage one. The Council said Y’s caseworker continued to speak to School A and a two-week trial placement was being discussed. The Council said it could not compel School A to respond on time to any consultation, but it encouraged compliance by ensuring schools received all the information they needed to formulate a full response, suggesting schools contact officers with any questions, and supporting schools to expand their knowledge of the SEND process through training.
Y became statutory school age in January 2022. Mrs X told the Council she would electively home educate Y to avoid the Council taking enforcement action about his non-attendance at the school named in his plan.
Mrs X has complained to the Information Commissioner about the Council issuing the draft EHC plan to a school without her consent. She has appealed to the SEND tribunal about the needs, provision and school named in Y’s EHC plan. She has also complained separately to School A about disability discrimination in relation to Y.
Analysis There are limits on the Ombudsman’s jurisdiction which mean I cannot consider all of this complaint. Matters relating to data protection are for the Information Commissioner to consider, and concerns about the content of a final EHC plan are for the SEND tribunal to consider.
The Code directs councils to consult with schools once a parent requests a particular school be named in the plan. It says councils should send a copy of the draft plan to the school. Mrs X had already stated her preference for School A before the Council sent her a copy of the draft plan. I do not consider it is fault for a council to consult a school which the parent has stated is their preference, alongside seeking the parent’s views on a draft plan.
The Council should not have published a draft process which it does not follow on its website. This was fault and would have caused Mrs X frustration.
The Council failed to deal with the email Mrs X sent on 24 March or the voicemail messages which Mrs X left on 23 and 29 March asking it to not send the draft EHC plan to any schools. This was fault and resulted in the draft EHC plan being issued to the schools on 6 April, which caused Mrs X distress. It is not possible for me to say whether Mrs X’s preferred school would have made a different decision about offering Y a place if the Council had not shared the draft EHC plan.
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 EHC plan, we cannot seek a remedy for lack of education after the date the appeal right arose if it is linked to the disagreement about the school place named.
Mrs X has appealed the school place named in Y’s final EHC plan. I am therefore unable to seek a remedy for any lack of education since the appeal right arose in September 2021. I have seen nothing to suggest Y missed out on any education before then.
The Council accepts there was delay issuing a final EHC plan for Y. The Council took 44 weeks to issue the final plan. It should have issued it within 20 weeks. The Council’s delay here was fault.
I do not consider it likely that Mrs X’s preferred school would have offered Y a place if there had been no delays. The school’s main reason for not offering Y a place was because it did not have time to recruit and train another teaching assistant. However, even when additional time was given, the school still considered it could not meet Y’s needs. I consider the Council’s delay issuing a final EHC plan caused Mrs X frustration and put her to avoidable time and trouble.
Agreed action
The Council says it is developing a 20-week assessment process which will ensure improved communication with parents and young people, be person centred, ensure that EHC plans are informed by a thorough and robust assessment and focus on timeliness and quality. It says that it is: developing a dedicated assessment team of case officers who will concentrate exclusively on the statutory assessment process; building a case management system that enables efficient processing and coordination of work with timeliness in mind; developing the SEND Panel process, with a focus on quality assurance of EHC plans and robust decision making on placements which should positively impact on timescales and service delivery; and providing training to case officers so that they can issue proposed and final EHC plans thereby reducing the risk of the process being delayed whilst waiting for support from the Council’s Business Support department.
Within six weeks, the Council will take the following actions: Provide an update on the 20-week assessment process it is developing, which is summarised in paragraph 42.
Make a payment of £300 to Mrs X to recognise the distress and avoidable time and trouble she has been put to as a result of the failings identified.
Take action to ensure emails and telephone calls are responded to in a timely manner, including when caseworkers are on annual leave.
Final decision
I have completed my investigation and uphold Mrs X’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.
Parts of the complaint that I did not investigate I have not investigated Mrs X data protection complaint about the Council sharing the EHC plan with schools in April 2021 without her consent. Mrs X has complained to the Information Commissioner about this. I have also not investigated the Council’s decision to name a mainstream school in Y’s final EHC plan. Mrs X has exercised her right of appeal about this.
Investigator's decision on behalf of the Ombudsman