• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Miss X complained the Council delayed in completing her son’s Education, Health and Care Needs Assessment and issuing a final Education Health and Care Plan for him. We found fault by the Council but consider the agreed action provides a suitable remedy.

The complaint

1. Miss X complained the Council delayed in completing her son, Y’s, Education, Health and Care (EHC) Needs Assessment and in issuing his final EHC plan.
2. Miss X says the delay negatively impacted Y’s education and wellbeing. It also caused her distress, frustration and put her to the avoidable time and trouble of pursuing the matter.

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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 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)
4. 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)
5. 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

6. As part of my investigation, I have:

• considered the complaint and the documents provided by Miss X;
• discussed the complaint with Miss X;
• made enquiries of the Council and considered its comments and documents it provided;
• considered our guidance on remedies; and
• sent my draft decision to both the Council and Miss X and invited their comments.

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What I found

7. 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.
8. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
9. There is a right of appeal to the SEND Tribunal 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.
10. 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.
11. 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.
12. 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.

13. Those consulted have a maximum of six weeks to provide the advice.

14. 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)

What happened

15. On 25 May 2022 Miss X asked the Council to carry out an EHC Needs Assessment for her son, Y.
16. In July 2022 the Council told Miss X it would not assess Y. Unhappy Miss X appealed to the SEND Tribunal.
17. Following advice from the Council Miss X asked Y’s school to request a new EHC Needs Assessment for Y.
18. On 17 November 2022 the Council conceded Miss X’s appeal to the tribunal, and it accepted an EHC needs assessment for Y.
19. In January 2023 Miss X complained to the Council because her son was still waiting to be assessed by an Educational Psychologist (EP).
20. The Council responded to Miss X’s complaint on 14 March 2023. It acknowledged it had exceeded the statutory timeframes and apologised. It said this was due to a national shortage of EPs and it was working to address this matter. It said that within 14 days of its response it would nominate an officer to keep Miss X updated on the progress of Y’s EHC Needs Assessment.
21. However, the Council did not contact Miss Y as promised and she had to chase the Council for updates on the progress of Y’s assessment.
22. On 12 May 2023 Miss X contacted the Council to tell it she would be taking legal action because Y was still waiting to be assessed by an EP. The same day Miss X received a call from the Council offering her a date for Y to be assessed by an EP.
23. In June 2023 Y was assessed by an EP
24. On 6 July the Council sent Miss X a copy of a draft EHC plan for Y.
25. On the same day Miss X told the Council the draft plan and covering letter contained the names of other children and misspelt Y’s name. The case officer apologised and sent an amended draft EHC plan on 11 July 2023.
26. Unhappy with the Council’s actions Miss X made new stage one and stage two complaints.
27. On 24 July 2023 the Council issued Y’s final EHC plan. This specified extensive provision for Y, including the following:

• One to one intervention.
• 30 minutes per week of individual support for Y’s emotional literacy and his wellbeing.
• 40 minutes of weekly maths intervention.
• Daily 15-minute pre -teaching sessions for each core subject.
• Staff to regularly check in (every 10-15 minutes) with Y during lessons to check he is feeling confident with tasks.

28. In August 2023 the Council sent Miss X its final complaints response. It agreed there were errors in the draft EHC plan for Y but considered an appropriate apology had been offered to Miss X. It said it would be raising the issue of ensuring the accuracy of EHC plans and not copying and pasting information at the relevant teams next meeting.
29. Miss X remained unhappy with the Council’s handling of Y’s case and she approached the Ombudsman. She raised the following concerns:

• delays in carrying out Y’s EHC Needs Assessment and how the Council was prioritising assessments;
• delays in completing Y’s EHC plan; and
• the errors contained in the draft EHC plan sent to her.

30. In response to our enquiries the Council said:

• It has a risk-based approach to prioritising EHC needs assessments. It provided a list of factors that would warrant a child’s assessment being prioritised. The list included children who were out of school, in a transiting phase of education or children with social, emotional or mental health needs.
• It was a coincidence that Miss X was offered an EP assessment the same day as she threatened to take legal action. It said Y was on the allocation list for that day prior to Miss X calling.
• It apologised for the delays in dealing with Y’s case and for the errors in the draft EHC plan. It offered to make Miss X a symbolic payment of £500 in recognition of the injustice caused to her and Y.

Analysis

31. The Council accepts there was delay in completing Y’s EHC needs assessment. Y should have had a final EHC plan by 6 April 2023. A final plan was not issued until 24 July 2023. This is a delay of 15 weeks.
32. The Ombudsman is aware of the actions the Council is taking to resolve the lack of EPs that contributed to the identified delay. We consider the delays in this case amount to a service failure. As the Council is already taking action to improve its service, I will not be making any additional service improvement recommendations.
33. If it had not been for the delay in completing Y’s EHC plan, he would likely have started receiving the provision set out in his plan sooner. This has caused an injustice to Y as he missed a term of provision.
34. The Council failed to act on the recommendations made in its response to Miss X’s complaint of January 2023. Regular updates on the progress of Y’s EHC assessment were not forthcoming and Miss X had to continually chase for updates and to progress Y’s case until the final EHC plan was issued.
35. Miss X was also put to the time and trouble of requesting amendments to the draft EHC plan because of errors caused by copying and pasting details from other plans into the draft EHC plan for Y. I note the action the Council is taking to prevent similar errors occurring in future.
36. I note Miss X’s concerns about how the Council was prioritising EHC assessments. I am satisfied the Council has a policy for deciding which cases warrant priority for assessment.

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Agreed action

37. Within in one month of my final decision the Council should carry out the following:

• provide a written apology to Miss X and Y;
• make a symbolic payment of £600 (this is an increase of £100 on the payment offered by the Council in its response to my enquiries) to Miss X in recognition of the uncertainty, distress and avoidable time and trouble caused to her and Y by the failure to issue the final EHC plan within statutory timescales and its poor communication with her; and

• £900 in recognition of the provision not provided to Y because of the delay in issuing his final EHC plan.

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Final decision

38. I have completed my investigation and found there was fault by the Council which caused an injustice. The Council has agreed to carry out the above actions to remedy the injustice caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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