Summary: Mrs X complains about delays in the EHCP process for her daughter, Y. We have concluded our investigation having made a finding of fault by the Council. There were significant delays in the process which resulted in a loss of educational provision and support for Y. The Council have accepted our recommendations.

The complaint

1. Mrs X complains about the EHCP process for her daughter, Y. Mrs X says the Council failed to issue a draft EHCP within the statutory timescales and has failed to finalise her daughter's EHCP. Mrs X says this has impacted her daughters access to education. Mrs X says this has been stressful and emotionally and financially challenging for her family and would like the Council to put this right. Mrs X would like to ensure that such failures by the Council do not happen again.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I spoke with Mrs X and considered the information she provided. I also considered the information the Council provided. I considered any comments from Mrs X and the Council before issuing my final decision.

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What I found

Relevant law and guidance

Education, Health Care Plans and assessment process

5. A child with special educational needs may have an Education, Health and Care (EHC) Plan, following an assessment of needs. 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 SEND Tribunal can do this.
6. There is a right of appeal to the Tribunal against a decision not to assess, not to issue an EHC Plan or about the content of the final EHC Plan, including the decision about the named school.
7. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ 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. The guidance says:
• Where a local authority 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 date of the request until the final EHC Plan is issued must take no more than 20 weeks, unless certain exceptions apply.
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
• As part of the needs assessment, councils must gather advice from relevant professionals. This includes:
• the child’s education placement
• medical advice and information from health care professionals involved with the child
• psychological advice and information from and Educational Psychologist (EP)
• social care advice and information
• advice and information from any person requested by the parent or young person, where the council considers it reasonable
• any other advice and information the council considers appropriate for a satisfactory assessment.
8. Those consulted should provide the advice within six weeks.

School consultations

9. If a parent asks the Council to name a particular school in the EHC Plan, the Council must agree unless:
• it would be unsuitable for the age, ability, aptitude or special educational needs of the child or young person; or
• admitting the child or young person to the school "would be incompatible with the efficient education of others, or the efficient use of resources".
10. The local authority must consult the school concerned and consider their comments very carefully before deciding whether to name it in the EHC Plan.

Background

11. In events leading up to this complaint, Y attended School A.

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What happened

12. I have included a summary of some of the key events below. This is not intended to be a comprehensive account of everything that took place.
13. In November 2021 the Council received an assessment needs request from Mrs X.
14. In December 2021, a needs assessment was agreed, and the Council issued its decision to Mrs X.
15. In January 2022, the Council wrote to Mrs X to apologise for the delay. The Council informed Mrs X that it was waiting on the report from the Educational Psychologist before it could progress.
16. In March 2022, the Council again wrote to Mrs X to apologise for the delay, and informed her it was still awaiting the report from the Educational Psychologist.
17. In April 2022, Mrs X contacted the Council to ask if the assessment could be completed without the Educational Psychologist’s report. The Council told Mrs X that the report was required to inform the process, and make recommendations of the provisions needed to support Y, which would guide the Council to make a decision as to whether or not a plan should be issued.
18. In May 2022, an Educational Psychologist was allocated to Y’s case. In June 2022, Mrs X chased an update from the Council explaining that she was wary the delay was having a significant impact on Y’s ability to secure a place in a school for the following academic year. Mrs X again chased an update later in June 2022.
19. In July 2022, the Council received the report from the Educational Psychologist. Two weeks later, the Council wrote to Mrs X to inform her of its decisions to issue an EHCP.
20. At the end of July 2022, the draft EHCP was shared with Mrs X. Due to access issues, the draft EHCP was not shared with Mrs X until early August 2022.
21. In August 2022, as part of the consultation process, School A and School B commented that they should not be named in the final EHCP.
22. Mrs X also made comments in response to the draft EHCP, stating that both parents believed it would be in the best interests of Y to remain at School A. Mrs X said she was aware this would require appropriate support to be in place, timetable adjustments and that Y may have to undertake an additional year in order to complete her GCSE’s.
23. In mid-August 2022, School A submitted its costed provision to the Council. At the end of August 2022, the Council emailed Mrs X with the consultation responses and information in personal budget. The Council wrote to School A to confirm the funding level and that it would be naming it in the finalised EHCP.
24. In September 2022, Mrs X asked the Council whether Y could be tutored from home. The Council informed Mrs X that it would not have any concerns over this if School A commissioned a tutor with the resources available to it.
25. Later in September 2022, the Council issued its final plan. The Council also informed Mrs X that her queries about Y re-sitting a year would be a conversation to have with School A, as this would always be an arrangement between parents and the school.

Analysis

26. The above account of events shows there was significant delay by the Council in completing the EHC needs assessment and issuing the final EHC Plan. The process should take no more than 20 weeks from the date of the request for an assessment until the final EHC Plan is issued. The Council must give its decision whether to agree an assessment within six weeks. This means the Council has a further 14 weeks from the date of the decision to complete the process and issue a final EHC Plan.
27. In this case, Mrs X submitted the assessment request on 4 November 2021. The Council agreed to the assessment on 1 December 2021. The timescale for issuing a final Plan was therefore 14 weeks from the date of the decision to assess, making the final EHCP due on 24 March 2022. The Council issued the final EHC Plan on 7 September 2022, 26 weeks late. This delay is fault.
28. The Council has accepted there was significant delay which meant it failed to meet the statutory timescales. In response to our enquiries, the Council identified and explained the delays. The Council said after it agreed to carry out the assessment, it faced difficulties in obtaining an Educational Psychologists advice. The Council says it required the Educational Psychologists advice to help inform the process and could not progress without it.
29. At the time, Mrs X raised concerns with the Council that the delay was impacting upon securing a school placement, as vacancies had begun filling up since February. In any event, Mrs X expressed to the Council that it was her preference for Y to remain at School A, which was later named in Y’s EHCP. I therefore do not consider that any delay in the process impacted upon Y securing a place at Mrs X’s preferred school, as School A was later named.
30. Mrs X expressed concerns that the delays had impacted upon Y’s ability to achieve her GCSE’s at the end of the year. In correspondence Mrs X shared with the Council regarding naming School A, Mrs X says she was aware that Y may have to undertake an additional year in order to complete her GSCE’s.
31. However, I consider the delay in issuing the final EHC Plan did have an impact on Y’s education. It meant she missed out on receiving the support set out in the Plan for the months between March 2022 - July 2022 and for the short period between the beginning of the academic year in September, to when the final plan was issued on 7 September 2022. This was a significant period in Y’s learning given the proximity to her undertaking her GCSE’s. If the EHC Plan had been issued within the statutory timescales, Y would have received the support specified in her EHCP from March 2022.
32. The Council says it has taken action to deal with the delays caused by staff shortages. The Council says it undertook a recruitment drive to employ more Educational Psychologists, and has since brought Educational Psychologists back into the Council, which it hoped would help the situation and reduce delays. The Council says it has also asked Educational Psychologists to undertake only statutory work.
33. As the Council has already taken action to identify and resolve matters concerning the delays prevalent in this complaint, I do not need to recommend service improvements here. However, I recommend a personal remedy for Mrs X and Y below.

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Agreed action

34. As per our guidance on remedies, where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account individual circumstances. I have arrived around the point of the scale at £350 per month given the significant period in Y’s learning that these delays occurred. I will recommend an amount that accounts for a total of four months that Y would have been at school without her EHCP.
35. To resolve matters, the Council has agreed to:
1. Pay Mrs X an amount of £150 for the distress, confusion and uncertainty caused by delays in the EHCP process.
2. Pay Mrs X an additional amount of £1,400 as a symbolic payment to acknowledge the loss of educational provision and support for Y caused by delays in the process. This should be used for the benefit of Y’s education and support needs.
36. The Council will complete actions a-b within one month of the Ombudsman’s final decision.

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Final decision

37. I have concluded my investigation having made a finding of fault. There were significant delays in the process which resulted in a loss of educational provision and support for Y. The Council has agreed to my recommendations.

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Investigator's decision on behalf of the Ombudsman