Summary: The Council avoidably delayed producing an Education Health and Care Plan (EHC Plan) for Mr X’s child, Z. Its communication and complaint handling was also poor in this case. These faults caused frustration and uncertainty to Mr X and Z. The Council has agreed to apologise, pay Mr X £300 and carry out several service improvements to recognise the injustice caused.

The complaint

1. Mr X complains the Council:
1. delayed by several months in deciding whether to carry out an Education Health and Care Needs Assessment (EHC needs assessment) for his child, Z, after Mr X applied for an assessment in January 2022;
2. then delayed by several months in finalising Z’s EHC Plan;
3. failed to communicate with him properly during the EHC Plan process; and
4. failed to address his concerns when he raised them through the Council’s complaints process.
2. Mr X says this has caused him and his child avoidable distress and frustration.

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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 an injustice, 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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
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 the information provided by Mr X and the Council.
9. I considered the relevant law and guidance as set out below.
10. I considered our Guidance on Remedies.
11. I considered all comments made by Mr X and the Council on a draft decision before making this final decision.

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What I found

Law and guidance

EHC Needs Assessments

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 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.
13. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an 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; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
14. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
15. Those consulted have a maximum of six weeks to provide the advice.

What happened

16. Mr X’s child, Z, has been diagnosed with autistic spectrum disorder and has mental health issues.
17. During the time period I am investigating, Z was resident in a hospital due to their mental health and was accessing education through the hospital’s specialist school. Prior to this they were attending a mainstream school.
18. On 28 January 2022 Mr X applied for an EHC needs assessment for Z due to their special educational needs.
19. On 22 March 2022 the Council wrote to Mr X to say it agreed that Z met the criteria for an EHC needs assessment.
20. This was eleven days later than the six weeks the Council should have taken to decide whether it would carry out an EHC needs assessment. The Council said this was due to staff absence.
21. On the same day the Council agreed to carry out an EHC needs assessment for Z it requested assessments from an educational psychologist, health professionals and social care services.
22. By 3 May 2022 the professionals that the Council approached for advice and assessment should have provided the requested evidence needed to progress Z’s EHC Plan. This did not happen.
23. Mr X complained to his Member of Parliament (MP) that the Council was failing to communicate with him properly regarding his child’s EHC Plan and the Council’s search for education placements for Z.
24. In May 2022 the Council responded to Mr X’s MP to say Z’s mental health needs were complex and therefore while the Council had approached 400 placement providers, a specialist placement had not yet been found.
25. Regarding Mr X’s complaint about communication, it said it would ask Z’s social worker to maintain regular contact with Mr X regarding the placement search.
26. By 17 June 2022 the Council should have issued Z’s final EHC Plan. This did not happen.
27. The educational psychologist’s advice was received in several parts between 6 July 2022 and 2 August 2022. The Council did not receive the advice and reports it requested from social care or the children’s mental health service.
28. The Council issued the first draft EHC Plan for Z on 9 August 2022, shortly after it received the delayed advice it had requested from the educational psychologist.
29. Mr X complained again about the delay in progressing Z’s EHC Plan and the Council’s poor communication. The Council sent him its final complaint response on 28 August 2022. The Council did not address Mr X’s complaints and said instead that the EHC Plan had now been issued and if he remained dissatisfied to approach the Ombudsman.
30. Following comments made by Mr X, the Council produced two further draft EHC Plans in September and October 2022.
31. The Council issued a final EHC Plan for Z on 8 November 2022. The Council’s cover letter to Mr X informed him of his right to appeal to the Special Educational Needs and Disabilities Tribunal (SEND Tribunal) if he disagreed with the final EHC Plan.
32. The Council said the reason for the delay is because the professional assessments it requested were either late or were not received at all.

My findings

Complaint 1A) EHC Needs assessment delay

33. The Council delayed by eleven days in deciding whether to carry out an EHC needs assessment. The Council said this delay was due to staff absence.
34. The Council was at fault. However this fault did not lead to a significant injustice for Mr X or Z as it only delayed the process by several days.

Complaint 1B) Delay in then finalising the EHC Plan

35. There was a delay in the Council receiving the advice it needed to progress Z’s EHC Plan from the educational psychologist. The children’s mental health service did not respond at all before the final EHC Plan was issued. These delays were outside of the Council’s control and amount to service failure rather than fault by the Council.
36. However once the Council received the educational psychologist’s advice in full by 2 August 2022, it still took a further fourteen weeks to issue a final EHC Plan for Z. This was a significant and avoidable delay. The Council was at fault.
37. This fault caused frustration to Mr X and Z and has also left Mr X and Z uncertain as to whether a suitable education placement might have been available to Z earlier, were it not for this delay.

Complaints 1C) and 1D) Communication and complaint handling

38. The Council failed to keep Mr X properly informed during the significantly delayed process of producing Z’s EHC Plan.
39. In particular the documents show the Council failing to explain the cause of the delay, which was the difficulty obtaining professional advice from separate organisations.
40. The Council’s final complaint response in August 2022 was also poor. It did not acknowledge how delayed Z’s EHC Plan was or provide any reasons for the delay. It also did not offer Mr X anything in the way of a remedy for the injustice caused.
41. The Council’s poor communication and poor complaint handling was fault. This fault caused avoidable frustration to Mr X and Z.

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Agreed action

42. Within one month of the final decision, the Council has agreed to:
1. apologise to Mr X and Z for its delay in producing Z’s EHC Plan and its poor communication and complaint handling; and
2. pay Mr X £300 to reflect the frustration and uncertainty caused by its delay in producing Z’s EHC Plan and its poor communication and complaint handling.
43. Within three months of the final decision, the Council has agreed to:
1. demonstrate that it has reminded SEND staff of the deadlines around EHC needs assessments and issuing draft and final EHC Plans; and
2. show its complaint handling team this case and remind complaint handling staff that their complaint responses should assess what has gone wrong, explain what has gone wrong to complainants and seek to remedy any injustice caused by the Council where possible.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay Mr X a financial remedy and carry out several service improvements.

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Investigator's decision on behalf of the Ombudsman