Summary: The Council was at fault for delays in completing a child’s Education, Health and Care needs assessment and for delays in complaint handling. As a result, the child had to wait for over a year to receive their Education, Health and Care plan and missed out on provision they should have received much sooner. To remedy the injustice caused, the Council agreed to apologise, make a payment for the loss of provision and the distress caused, and carry out service improvements to address its complaint handling and backlog of Education, Health and Care needs assessments.

The complaint

1. Mr X complains about the time taken by the Council to carry out an assessment of his son’s educational and health needs and issue a final Education, Health and Care plan.

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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 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)
3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
4. When considering complaints, if there is a conflict of evidence, 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.
5. 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

6. As part of this investigation, I considered the information provided by Mr X and the Council. I discussed the complaint over the telephone with Mr X. I sent a draft of this complaint to Mr X and the Council for comments.
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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What I found

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. 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 tribunal can do this.

Timescales and process for EHC assessment

9. 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.
10. 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.
11. 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.
12. Those consulted have a maximum of six weeks to provide the advice.
13. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)
14. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to:
• make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan; and
• require the council to arrange a meeting between them and an officer of the council at which the draft plan can be discussed. (Special Educational Needs and Disability Regulations 2014)

What happened

15. Mr X’s son Y has special educational needs. Y’s school asked the Council to carry out an EHC assessment for Y on 17 March 2021.
16. Mr X said he did not hear anything further and after he and Y’s school chased this up with the Council, the Council told him in October 2021, it would proceed with the assessment.
17. The Council sent Mr X Y’s draft EHC plan in early October 2022 and Y’s final EHC plan on 25 October 2022. The special educational provision in section F of the plan included an individual education plan and participation in social skills groups. Section F also included detailed information on how school staff should interact with Y and use different techniques, methods and activities to help his learning.

Mr X’s complaint to the Council

18. On 3 October 2022, Mr X complained to the Council about the time it was taking to issue a final EHC plan for Y.
19. The Council sent Mr X a stage one complaint response on 31 October 2022. The Council upheld the complaint and apologised for the delay in issuing Y’s final EHC plan. The Council said it did not decide whether to proceed with the EHC assessment within six weeks of receiving the request to assess Y. The Council also acknowledged it did not complete the assessment within 20 weeks of receiving the request.
20. The Council said it had been challenged by a large number of overdue EHC assessments to complete and a high number of new requests for EHC assessments. The Council said it had recently prioritised its resources through extra staffing and had strengthened its ICT infrastructure to address the increase in demand.
21. Mr X asked the Council to consider his complaint at stage 2 on 24 November 2022. Mr X said the Council had not offered him any remedy for the delays in completing Y’s EHC plan. Mr X said his son had missed out on over a year of support because of the time taken to issue the final EHC plan.
22. Between December 2022 and June 2023, there was email correspondence between Mr X and the Council where he chased up a response to his complaint at stage two. During this timeframe the Council told Mr X someone from the complaints team would contact him, however this did not happen.
23. In June 2023, Mr X contacted the Ombudsman as he had not received a response to his complaint. The Ombudsman contacted the Council and asked it to consider the complaint.
24. The Council provided Mr X with its final response in late August 2023. The Council:
• Accepted and upheld Mr X’s stage one complaint and apologised to him for the delay in carrying out the EHC assessment.
• The stage two review found no evidence to support Mr X’s belief that a delay in finalising the EHC assessment held back or changed Y’s learning profile or progress.
• Offered Mr X £500 to recognise the delay in carrying out the EHC assessment and time and trouble associated with raising a complaint.
25. Mr X remained dissatisfied and complained to the Ombudsman.

Analysis

26. The Council was at fault for the time taken to carry out Y’s EHC assessment and issue a final EHC plan. The Council received the request to assess Y on 17 March 2021. It should have completed the assessment and issued a final EHC plan by 4 August 2021. As the Council did not issue a final EHC plan until late October 2022, the delay amounts to around three and a half school terms.
27. The Council was also at fault for how it handled Mr X’s complaint. At stage two of the Council’s complaints process it says complaints will be responded to within 15 working days. Mr X asked for a stage 2 review on 24 November 2022 and did not receive a response until 31 August 2023. During this timeframe he chased the Council up several times and eventually complained to the Ombudsman as he had not received a response.
28. As I have found fault I need to consider what injustice this caused. If the Council had finalised the EHC plan by August 2021, Y would have been able to start the next school year with an EHC plan in place. As a result he has missed out on three and a half terms of special educational provision. Y’s EHC plan provided his teachers with significant detail on how he should be treated and taught in the classroom. Without a finalised EHC plan the school staff would not have known exactly what support Y needed, therefore I on balance am satisfied this delay has impacted on Y’s learning.
29. Mr X and his family have also suffered injustice as they spent a considerable amount of time chasing this matter up with the Council and experienced the distress of knowing their child was not getting the support he should have. While I acknowledge the Council offered Mr X £500 in recognition of the distress caused for the delays in completing the EHC assessment and delays in complaint handling, this does not impact the loss of provision to Y.
30. The Ombudsman’s guidance on remedies recommends £900 - £2,400 per term for lost provision. In this case I consider the payment should be at the lower end of the scale. This is because Y was attending school, receiving education and was getting some support at school.

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Agreed action

31. Within one month of my final decision the Council agreed to carry out the following:
• Provide Mr X with a written apology for the delay in completing Y’s EHC assessment and issuing a final EHC plan and for its failures in complaint handling.
• Pay Mr X, for the benefit of Y’s education, £3,150 to acknowledge the loss of provision as a result of the delays of three and a half terms in finalising Y’s EHC plan. This has been calculated at £900 per term for three and a half terms.
• If the Council has not already done so, pay Mr X £500 to acknowledge the distress he experienced as a result of the delays in complaint handling and delays in completing Y’s EHC assessment.
32. Within three months of my final decision the Council should carry out the following:
• Review what went wrong in its complaint handling in this case and identify what measures it can put in place to ensure delays such as this do not occur in the future.
• Provide the Ombudsman with a report detailing what it has done, and plans to do, to tackle the backlog of overdue education, health and care needs assessments and ensure these are completed within the statutory timeframe.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation and found the Council was at fault which caused injustice. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman