Summary: Ms X’s son, Z, would have attended a specialist primary school placement sooner, were it not for the Council’s delay in carrying out his Education, Health and Care (EHC) needs assessment. The Council delayed by 23 weeks in finalising Z’s EHC plan, failed to consult the specialist school Ms X requested in a timely way, and communicated poorly with Ms X during this time. The Council has agreed to apologise and pay Ms X £650 in recognition of the distress and uncertainty caused by the delay. Particularly as this happened during a key phase transfer in Z’s education. The Council has also agreed to pay Ms X £300 in recognition of the frustration caused to her by the Council’s poor communication and delay and carry out several service improvements.

The complaint

1. Ms X complains the Council delayed in producing her child’s EHC Plan. She says this happened ahead of a key transfer in his education and caused him to miss the opportunity to begin primary school in a specialist placement.
2. The Council has already accepted that its communication with Ms X during the EHC Plan process has been poor and has apologised.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think 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)
6. 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

7. I considered the information provided by Ms X and the Council.
8. I considered the relevant law and guidance as set out below.
9. I considered our Guidance on Remedies.
10. I considered all comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

EHC plans

11. 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.
12. The EHC plan is set out in sections which include;
• Section B: The child or young person’s special educational needs; 
• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of school. 
13. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.

EHC needs assessments

14. Statutory guidance 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);
• if the council decides, following an EHC needs assessment, not to issue an EHC plan, it must inform the child’s parent or the young person within a maximum of 16 weeks from the request; and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan. (Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’))

Key phase transfers in education

15. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education.
16. Section 9.148 of the SEND Code of Practice says, ‘for children within one to two years of starting compulsory education who are likely to need an EHC Plan in primary school, it will often be appropriate to prepare an EHC Plan during this period so the EHC plan is in place to support the transition to primary school.
17. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest, for transfers into or between schools. The key transfers are:
• early years provider to school 
• infant school to junior school 
• primary school to middle school 
• primary school to secondary school, and 
• middle school to secondary school. (Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’))

What happened

Background

18. Z has special educational needs. He received his diagnosis in September 2021. During this complaint period he was attending nursery. He was due to start primary school in September 2022.
19. The Council’s Early Years Inclusion team was aware that Z was accessing SEN support including one-to-one support and sensory resources, while he attended nursery. The Early Years Inclusion team held a “team around the family” meeting which Ms X attended in Autumn 2021.
20. On 18 January 2022 Z was assessed by an educational psychologist. They recommended that he would benefit from being in a specialist education placement.

Complaint period

21. On 16 February 2022, Z’s nursery applied to the Council for Z to have an EHC needs assessment.
22. On 7 March 2022 the Council agreed to carry out an EHC needs assessment for Z.
23. By 6 July 2022 the Council should have issued a final EHC plan for Z. The Council did not do this so Ms X complained to the Council on 18 July 2022 and again on 20 July 2022.
24. She said Z needed his EHC plan in place if he was to be able to access a specialist placement when he was due to begin primary school that September.
25. On 29 July 2022 the Council issued a draft EHC plan for Z. In line with the guidance, Section I was left blank at draft stage but it listed a range of SEN support Z should access in Section F.
26. The Council responded at stage one of the complaints process on 9 August 2022. It said the deadline for completing EHC plans ahead of phase transfers is February for a September start. As it did not receive the request for an EHC needs assessment for Z until 16 February, it said it would not have been able to produce an EHC plan for Z in time for him to start primary school in September that year anyway.
27. Ms X complained again on 15 August 2022. She said the Council had delayed in completing the EHC needs assessment for Z which had contributed to him not being able to access a specialist placement in time for him to start primary school.
28. The Council responded at the final stage of the complaints process on 14 September 2022. It said there were no specialist school placements available at the time of Z’s EHC needs assessment being carried out, so Z did not miss out on accessing specialist education. However it apologised for its poor communication with Ms X.
29. On 17 December 2022 the Council issued a final EHC plan for Z. This named a mainstream school. Ms X was unhappy with Z being placed in mainstream education. She said the Council did not consult the specialist schools that she asked it to.
30. The Council consulted Ms X’s preferred specialist school on 20 December 2022, as well as several other placements. Ms X’s preferred mainstream school responded the same day. It said it could meet Z’s SEN need. However it did not have space for him at that time.
31. In early February 2023 Ms X complained to the Ombudsman.
32. The Council issued a final EHC plan for Z on 24 February 2023 naming the preferred specialist school placement for a September 2023 start. It said until then he would continue to attend the mainstream school with SEN support.

My findings

Delay in EHC needs assessment

33. The Council was aware of Z’s SEN from Autumn 2021 when its Early Years Inclusion team held a ‘team around the family meeting’. However it did not consider that he would likely need an EHC needs assessment until this was requested by his nursery in February 2022.
34. The SEND Code of Practice says, ‘for children within one to two years of starting compulsory education who are likely to need an EHC Plan in primary school, it will often be appropriate to prepare an EHC Plan during this period so the EHC plan is in place to support the transition to primary school’.
35. The Council was aware in Autumn 2021 that Z would likely need an EHC plan but it did not begin his EHC needs assessment at that time. The Council was at fault. On the balance of probabilities, as Z’s EHC plan now names a specialist placement, he would have attended a specialist placement sooner were it not for this fault. This has caused Ms X and Z distress and uncertainty during a key transfer in Z’s education.

Delay in finalising EHC plan

36. The Council agreed to carry out an EHC needs assessment for Z within the statutory timeframe. However it then delayed significantly in finalising his EHC plan.
37. It took the Council just over 43 weeks from the date the EHC Needs assessment was requested, to the date it issued the final EHC plan. The SEND Code of Practice says this process should not take more than twenty weeks. The Council said this was due to it missing communications from Ms X.
38. The Council was at fault for the delay in finalising the EHC plan. This fault caused Ms X frustration and uncertainty.

Failure to consult Ms X’s preferred school

39. During the EHC needs assessment process, Ms X requested that the Council consult specialist schools for Z. However the Council did not begin consulting specialist schools until December 2022, after it had issued the final EHC plan.
40. The Council was at fault. This fault contributed further to the delay in Z being able to access a specialist education placement.

Poor communication

41. The Council has accepted that its communication with Ms X was poor during this complaint period and has apologised. The Council was at fault for its poor communications. This fault caused Ms X further frustration.

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Agreed action

42. Within one month of the date of the final decision, the Council has agreed to:
1. apologise to Ms X for the injustice caused by the faults in this decision;
2. pay Ms X £650 - to be used for Z’s benefit – to recognise the uncertainty and distress caused by the delay in carrying out Z’s EHC needs assessment and producing his EHC plan;
3. pay Ms X £300 to recognise the frustration caused to her by the Council’s poor communication during a key phase transfer in her child’s education.
43. Within three months of the date of the final decision, the Council has agreed to:
1. demonstrate that it has taken action to prevent future delays in processing EHC needs assessments and EHC plans; and
2. demonstrate that it has reminded its relevant staff that where the Council becomes aware that a child in early years education is likely to require an EHC plan, that it start the process of assessment without delay, and with the key phases of education for that child in mind.
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 recommended an apology, a financial remedy and service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman