Summary: Mrs X complained the Council delayed completing her daughter, F’s Education, Health and Care (EHC) needs assessment in line with statutory timescales. The Council failed to decide whether to issue F with an EHC plan within the statutory timescale, caused by a delay in obtaining Educational Psychologist advice. This has caused a further delay in the Council issuing F’s final EHC plan. The Council agreed to make a symbolic payment to Mrs X to acknowledge the distress, frustration and uncertainty caused to her and F as a result of the delays.

The complaint

1. Mrs X complained the Council failed to complete her daughter, F’s Education, Health and Care (EHC) needs assessment within statutory timescales due to a delay in obtaining Educational Psychologist advice. This in turn caused a delay in issuing F’s EHC plan.
2. The delays have caused Mrs X distress and frustration and has impacted on F’s mental health, her education and ability to attend an appropriate educational placement.

Back to top

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. 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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

How I considered this complaint

7. I spoke to Mrs X about her complaint and considered information she provided.
8. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website.
9. Mrs X and the Council had an opportunity to comment on the draft decision and I considered comments before making a final decision.

Back to top

What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

10. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
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 Code is based on the Children and Families Act 2014 and the SEND 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 a child’s needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

12. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement. The appeal can be against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued. We cannot direct changes to the sections about the child’s special educational needs, special educational provision, or name a different school. Only the tribunal can do this.
14. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)

What happened

15. Mrs X has a daughter, F who has a diagnosis of autism and suffers from anxiety. In 2021 F was of secondary school age and due to transition to post-16 education from September 2022 onwards.
16. In December 2021 Mrs X asked the Council to carry out an Education, Health and Care (EHC) needs assessment for F which it agreed to do. In line with statutory timescales this means the Council should have made a decision about whether to issue F with an EHC plan by the end of March 2022. That being the case the Council should have then issued F’s final EHC plan by the end of April 2022.
17. Records show the Council wrote to Mrs X in February 2022 and explained the progress of F’s assessment was delayed due to a shortage of available Educational Psychologists (EP) to provide advice within the Devon area. It apologised for the ongoing delay this would cause.
18. The Council allocated an EP to F in July 2022 and in mid-August 2022 agreed to issue F with an EHC plan. It issued F’s draft EHC plan in September 2022.
19. Mrs X complained to the Council in October 2022. She complained F was still without a final EHC plan and was upset it had made no effort to prioritise F given she was in a transition year. As a result Mrs X said F started sixth form without provision in place to meet her Special Educational Needs (SEN) which has subsequently affected her attendance levels.
20. The Council issued F’s final EHC plan at the start of November 2022.
21. The Council responded to Mrs X’s complaint in November. It apologised for the delay in completing F’s EHC needs assessment and issuing her final plan. It said this was because of the shortage of EPs. The Council noted F’s final EHC plan was now issued which would release significant funding to the school to support F.
22. Mrs X remained unhappy and complained to us.
23. The Council has told us it is addressing the shortage of EPs in its area with ongoing recruitment and use of private EPs where possible.

My findings

24. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
25. Following Mrs X’s request for an EHC assessment the Council should have made the decision whether to issue a plan by the end of March 2022 and then subsequently issued the final plan by the end of April 2022.
26. The EP report should have been available to the Council by mid-January 2022 in order for it to have met the April deadline. The EP report was not complete until July 2022 which is delay and fault. It caused a delay in the Council deciding whether to issue F with an EHC plan. This service failure came about due to the Council being unable to recruit enough EPs to meet demand. This in turn had a knock-on effect which meant the Council did not issue the final EHC plan until November 2022. This was a delay of 28 weeks.
27. I have taken the end of April date as the start date for the injustice F and Mrs X have suffered as a result of the delays.
28. The delays have had an impact on both Mrs X and F. Had the Council carried out F’s EHC needs assessment in line with statutory timescales then F would have had a final EHC plan in place by the end of the 2021/22 academic year and crucially for the start of the following year. This may have helped her transition and settle when she started sixth form. The delays meant F has lost that opportunity which has caused distress, frustration and uncertainty to both her and Mrs X.
29. I have made a recommendation to acknowledge this injustice up to the point where the Council issued F’s final EHC plan in November 2022. I am satisfied the Council is actively recruiting EPs in its area to address the shortage, so I have not made any further service improvement recommendations.
30. Mrs X had a right of appeal to the SEND Tribunal if she disagreed with the special educational needs, provision or placement specified in the final EHC plan. As a result, I have not recommended a payment for any loss or delay in special educational provision to F because the EP assessment and support set out in the final EHC plan identified the special educational support F required. If Mrs X felt it did not, then she had a right to appeal to the tribunal.

Back to top

Agreed action

31. Within one month of the final decision the Council agreed to pay Mrs X £700 to acknowledge the distress, frustration and uncertainty caused to her and F by the Council’s failure to issue her final EHC plan in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan in April 2022 until the date it issued the final plan in November 2022.
32. The Council should provide us with evidence it has complied with the above action.

Back to top

Final decision

33. I completed this investigation. I found fault and the Council agreed to my recommendation to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman