Summary: Miss B complained the Council failed to follow the statutory process for issuing an Education, Health and Care Plan for her son. We find the Council at fault for a delay in issuing the final Education, Health and Care Plan. This caused Miss B distress, frustration and uncertainty. The Council has agreed to apologise, make a symbolic payment to Miss B and complete service improvements to remedy the injustice caused.

The complaint

1. Miss B complained the Council failed to follow the statutory process for issuing an Education, Health and Care Plan for her son, X. Miss B also complained the Council failed to name a school in the final Education, Health and Care Plan and failed to provided X with access to suitable education when he was unable to attend school from January 2025. Miss B told us the Council’s actions have caused emotional stress and burnout, family strain and educational concerns for X. Miss B would like the Council to arrange suitable education and provide compensation to acknowledge the stress and disruption it has caused. Miss B would also like the Council to provide regular updates about X’s Education, Health and Care Plan.

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The Ombudsman’s role and powers

2. 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)
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. 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(1), as amended)
5. 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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What I have and have not investigated

6. I have not investigated the parts of Miss B’s complaint which relate to the school named in the Education, Health and Care Plan or the Council’s actions in securing access to education from January 2025. The law says we cannot normally investigate matters which have a right of appeal, reference or review to a tribunal about the same matter. The school named in the Plan carries a right of appeal and X’s access to education from January 2025 is intrinsically linked to the school which was named.
7. I have investigated the Council’s actions in completing the Education, Health and Care Needs Assessment and issuing the Education, Health and Care Plan between February 2024 and December 2024.

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How I considered this complaint

8. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
9. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

10. 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. 
11. 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 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 EHC Plans “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 EHC Plan or refuse to issue a Plan within 16 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan 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 with 15 calendar days.
  (Delete irrelevant bullet points)

What happened

12. X’s school submitted an EHC needs assessment request in February 2024.
13. The Council’s multi-agency panel considered the request and decided the test for carrying out an assessment was not met. The Council wrote to Miss B at the end of March 2024 to explain its decision and advise Miss B of her right to mediation and appeal.
14. Miss B requested a mediation meeting which took place in the second week of April 2024. During the mediation meeting X’s school provided additional information about his attendance and the support he received in school. Based on the additional information, the Council agreed to complete an EHC needs assessment.
15. Week six of the statutory process began in the second week of April 2024, following the mediation meeting. This means the 20 week deadline for issuing the final Plan was the first week of September 2024.
16. The Council did not write to Miss B to confirm its decision to carry out an EHC needs assessment until June 2024, over two months after the mediation meeting took place.
17. In August 2024 the Council completed the assessment of X’s needs and agreed to issue an EHC Plan.
18. The final Plan was issued at the end of November 2024.

My findings

19. The Council issued its refusal to assess letter two days over the statutory deadline. This is fault but I do not consider a two day delay caused Miss B a significant injustice.
20. There was a two month delay in the Council issuing its decision letter following the mediation meeting. This is fault which caused Miss B distress, frustration and uncertainty.
21. There was a two month delay in the Council issuing the final EHC Plan following the needs assessment. This is fault which caused Miss B distress, frustration and uncertainty and delayed her right to appeal.

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Action

22. Within one month of the final decision the Council will:
• Apologise to Miss B for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
• Make a symbolic payment of £250 to Miss B in recognition of the injustice caused by the delay in issuing X’s EHC Plan.
23. Within three months of the final decision the Council will ensure it has a process in place to ensure that where a refusal to assess decision is overturned during a mediation meeting, the assessment should begin without delay and the agreement to assess letter should be issued without delay. The Council will make its relevant teams aware of this process.
24. The Council should provide us with evidence it has complied with the above actions.

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Decision

25. I find fault causing injustice. The Council has agreed to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman