Summary: Mrs X complained the Council delayed completing her daughter, Y’s Education, Health and Care (EHC) needs assessment in line with statutory timescales. The Council was at fault. It delayed deciding whether to issue Y with an EHC Plan within the statutory timescales, caused by a 19 week delay in obtaining Educational Psychologist advice. It then further delayed issuing Y’s final EHC Plan by 22 weeks after it received the EP advice. This caused Mrs X distress and delayed Y’s access to the specialist provision specified in the final Plan by around half a term. The Council agreed to make payments to Mrs X to acknowledge this injustice.

The complaint

1. Mrs X complained the Council delayed completing her daughter Y’s EHC needs assessment. This caused a significant delay in issuing the final EHC Plan.
2. Mrs X says the matter has caused her distress and uncertainty and the delays have impacted on Y’s education.

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The Ombudsman’s role and powers

3. 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)
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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.
6. 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).
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I considered Mrs X’s complaint and information she provided.
9. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website.
10. Mrs X and the Council had the opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

11. 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 tribunal or the council can do this.
12. 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 Code is based on the Children and Families Act 2014 and the SEND 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 a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

13. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
14. 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 appeal can be against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.

What happened

15. Mrs X has a daughter, Y who is of secondary school age and has special educational needs. Records show Y stopped attending school in 2019 at which point Mrs X had decided to Electively Home Educate (EHE) her.
16. In October 2022 Mrs X asked the Council to carry out an EHC needs assessment for Y which it agreed to do. In line with statutory timescales this meant the Council should have decided whether to issue Y with an EHC Plan by the start of February 2023. That being the case the Council should then have issued Y’s final EHC Plan by 1 March 2023.
17. As part of the EHC needs assessment the Council requested advice from an Educational Psychologist (EP) in November 2022. The Council wrote to Mrs X in January 2023 explaining the EHC needs assessment was delayed due to a delay in obtaining EP advice. The Council explained this was due to an unprecedented number of requests for assessments over the last 18 months and due to the shortage of EPs both nationally and in its area.
18. The EP provided advice in mid-May 2023 which was a delay of around 19 weeks. The Council sent its decision to issue Y with an EHC Plan a couple of weeks later. It issued Y’s draft EHC Plan in August 2023.
19. Mrs X complained to the Council in October 2023 about the delays in completing the EHC needs assessment and the delay in issuing her final Plan. Mrs X said she had told the Council in August that she no longer wished to home educate Y and that left her without a placement or a final Plan.
20. The Council responded to Mrs X’s complaint in November 2023. It apologised again for the delays. It said additional staff recruitment was ongoing which would reduce the time parents wait for EHC needs assessment. It said the Council was consulting with schools for Y and a decision about Mrs X’s Education Other than at School (EOTAS) request would be considered by a panel.
21. Records show the Council’s SEND panel agreed to an Education Other than at School (EOTAS) package for Y in November 2023. This consisted of tutoring, mentoring, art lessons and access to a forest school. It issued Y’s final EHC Plan in December 2023 with EOTAS in place for Y.
22. Mrs X remained unhappy and complained to us.

My findings

23. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
24. Following Mrs X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by February 2023 and then subsequently issued the final Plan by 1 March 2023.
25. The EP report should have been available to the Council by the start of January 2023 in order for it to have met the March deadline. The EP report was not complete until mid-May 2023 which was a delay of 19 weeks and fault. It caused a delay in the Council deciding whether to issue Y with an EHC Plan. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases.
26. However, the delay in obtaining EP advice was not the only reason for the delay in issuing Y’s final EHC Plan. With EP advice in hand the Council should have issued Y’s final Plan by mid-July 2023. It did not do so until December 2023 which is a further delay of 22 weeks which is fault.
27. In total the Council took 61 weeks to assess Y and issue her final EHC Plan instead of the 20 weeks statutory timescales due to the delay in obtaining EP advice and because of backlogs and staffing issues in its SEND service.
28. The faults outlined above have caused Mrs X distress and on balance, delayed Y’s access to the EOTAS package. Had the Council not delayed following receipt of the EP advice it is likely on balance that Y could have had the EOTAS package in place by the start of the academic year in September 2023 rather than in November 2023. This equates to around half a term of lost specialist EOTAS provision.
29. The Council has explained following similar cases investigated by the Ombudsman the action it is taking to meet the demands in its SEND service and to reduce the backlog in the EHC needs assessment process. This includes ongoing recruitment of EPs and SEN case officers. The Council should provide an update on its recruitment and staffing issues in its SEND service which is the main reason for the delays in this case.

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Agreed action

30. Within one month of the final decision the Council agreed to take the following action:
1. Pay Mrs X £475 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in deciding whether to issue Y with an EHC Plan caused by the delay in obtaining advice from an Educational Psychologist.
2. Pay Mrs X £600 to recognise Y’s loss of specialist provision in her EHC Plan between September and November 2023, caused by the 22 week delay in issuing Y’s final EHC Plan after it had obtained EP advice during the EHC needs assessment process.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman