The Ombudsman's final decision
Summary: Mr X complained the Council did not complete his son, Y’s, Education, Health and Care (EHC) needs assessment within the statutory timescales. Mr X also complained the communication from the Council was poor. Mr X said this caused him and his family distress. There was fault in the way the Council delayed completing the needs assessment and communication from the Council was poor. This caused Mr X distress and frustration. The Council should apologise and make a financial payment.
The complaint
Mr X complained the Council did not complete his son, Y’s, Education, Health and Care (EHC) needs assessment within the statutory timescales. Mr X also complained the communication from the Council was poor. Mr X said this caused him and his family distress.
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) 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) 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
I read Mr X’s complaint and spoke to him about it on the phone.
I considered information provided by Mr X and the Council.
Mr X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
What I found
Background information A child or young person with special educational needs may have an Education, Health and Care Plan (EHCP). This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council 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 EHCPs. 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 decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
The process of assessing needs and developing EHCPs “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
If the council goes on to carry out an assessment, it must decide whether to issue an EHCP or refuse to issue a Plan within 16 weeks.
If the council goes on to issue an EHCP, the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply); Councils must give the child’s parent or the young person 15 days to comment on a draft EHCP and express a preference for an educational placement.
The council must consult with the parent or young person’s preferred educational placement who must respond within 15 calendar days.
Following completion of an EHC needs assessment, if the Council decides an EHCP is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.
Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal. They do not have to agree to attend mediation.
There is a right of appeal to the Tribunal against: a decision not to carry out an EHC needs assessment or reassessment; a decision that it is not necessary to issue a EHCP following an assessment; What happened This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
Y has additional needs. Mr X applied to the Council for an EHC needs assessment in December 2022.
The Council met with Mr X to discuss his application at the start of February 2023. The Council issued its decision not to assess Y a week later.
Mr X disagreed with the Council's decision. He complained to the Council and requested mediation at the start of March 2023. Mr X chased the Council for a response two weeks later.
The Council agreed to complete a needs assessment for Y in April 2023.
The Council said it tried to contact Mr X in July 2023 about the delays in the EHC needs assessment. The Council said it could not contact Mr X.
Mr X and Y’s school chased the Council in October 2023 for an outcome of the EHC needs assessment. Mr X then complained to the Council. He complained it had failed to complete the needs assessment in the statutory timescales. He also complained about poor communication from the Council.
The Council responded to Mr X’s complaint at the start of November 2023. The Council explained a delay in the Educational Psychology (EP) service was the reason it had not completed the needs assessment. The response also accepted the Council had not responded to Mr X in a timely manner. The Council upheld Mr X’s complaint and apologised.
Mr X asked the Council to escalate his complaint on the same day. He said the lack of an EP was not satisfactory and he wanted the needs assessment completed quickly.
The Council allocated an EP in the middle of November 2023.
The Council responded to Mr X’s stage two complaint in December 2023. The Council repeated its response from the stage one complaint and explained the shortage of EP’s. The Council apologised for the poor communication.
The EP issued their advice to inform the needs assessment in December 2023.
The Council decided not to issue an EHCP for Y in February 2024. The Council said an enhanced support plan would meet Y’s needs.
Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to apologise and improve services.
The Council contacted Mr X in April 2024 about the delays he experienced in the needs assessment process. The Council offered Mr X £800 for the delays.
In response to my enquiries the Council stated it resolved Mr X’s complaint about the delays in the needs assessment. The Council also accepted communication was poor. The Council has apologised and offered Mr X a further £300.
My findings
EHC needs assessment The statutory guidance says the needs assessment process “must be carried out in a timely manner”. Steps must be completed as soon as practicable. If the council goes on to carry out an assessment, it must decide whether to issue an EHCP or refuse to issue a Plan within 16 weeks.
Mr X applied for Y’s EHCP in December 2022. The Council did not issue its decision until February 2024, significantly more than the 16 weeks mentioned in the guidance.
The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault. This caused Mr X distress.
Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
The Council accepted fault and offered Mr X £800 for the delay. This is in line with the Ombudsman’s guidance on remedies and a suitable offer.
Communication The Council confirmed it expects to respond to communication within five days. The Council has accepted it did not adhere to this expectation on different occasions with Mr X. This is fault and frustrated Mr X.
The Council, in response to my enquiries, offered to pay Mr X £300 to remedy this fault. This is a suitable offer.
Agreed action
To remedy the outstanding injustice caused to Mr X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision: Apologise to Mr X for delaying issuing its EHC needs assessment decision and poor communication. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology .
Pay Mr X the £800 it offered him for the delays in the EHC needs assessment.
Pay Mr X the £300 it offered for the poor communication.
I would generally make a service improvement recommendation. The Ombudsman has already made service improvement recommendations on the issues raised in this matter in other cases. We are actively monitoring the Council’s actions.
The Council should provide evidence of the actions taken to satisfy the recommendations.
Final decision
I have completed my investigation. I have found fault by the Council, which caused injustice to Mr X.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman