Summary: Mr X complained the Council failed to produce the Final Education Health Care Plan for their child within the statutory timescales. Mr X says the Council’s fault caused their child to miss educational support. We found with the Council for delays outside the statutory timescales. The Council offered to apologise to Mr X and provide a payment of £300 to acknowledge the time, trouble and uncertainty it caused. The Council also offered to consider an appropriate remedy, such as a financial award or catch-up provision, for missed special educational provision on production of the Final EHC Plan. The Council also agreed to produce the Final EHC Plan. We consider this a suitable remedy to reflect the injustice the Council’s fault caused.

The complaint

1. Mr X complained the Council failed to produce the Final Education Health Care Plan (EHC Plan) for their child within the statutory timescales.
2. Mr X says because of the Council’s failure, it is not meeting his child’s needs which is impacting his child’s education.

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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. 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).
5. 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.
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 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 the final decision with Ofsted.

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How I considered this complaint

8. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Relevant Law and Guidance

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 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:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice.
13. 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 (SEND Regulations, Regulation 13(1))
14. 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.

What happened

15. On 15 July 2022, Mr X made a request to the Council for an EHC Needs assessment for his child, Y.
16. On 23 August 2022, the Council agreed to carry out an EHC Needs assessment for Y. The Council told Mr X’s school about its decision who in turn told Mr X.
17. Mr X made a Stage 1 complaint to the Council on 2 February 2023 about the delays by the Council in completing the EHC Needs assessment. Mr X said the Council had failed to seek advice from relevant professionals, namely an Educational Psychologist, while completing the EHC Needs assessment for Y. Mr X said it had been 22 weeks since the Council agreed to carry out the EHC Needs assessment and the Council had failed to produce a Final EHC Plan.
18. The Council provided its Stage 1 complaint response to Mr X on 8 March 2023. The Council said:
• It had enquired of relevant professionals but advice from an Educational Psychologist and Social Care remained outstanding.
• There is a national shortage of Educational Psychologists causing delays with assessments. It was trying to address this issue through increased advertising for hiring Educational Psychologists and using locum Educational Psychologists in the meantime.
• Its Educational Psychologist service is aware of Y’s EHC Needs assessment and will complete this as soon as possible. The Council said it could not give a timescale for this.
19. Mr X sought a Stage 2 complaint response on 14 March 2023.
20. The Council provided its Stage 2 complaint response on 31 March 2023. The Council admitted fault in failing to provide the outcome of the EHC Needs assessment within the statutory timescales. The Council said it is still working on getting an Educational Psychologist for Y’s EHC Needs assessment.
21. On 5 May 2023, the Council appointed and Educational Psychologist for Y’s EHC Needs assessment. The Educational Psychologist completed their report on 12 June 2023.
22. The Council held an EHC Needs assessment panel on 28 June 2023 to discuss whether to issue and EHC Plan for Y. The panel decided to issue an EHC Plan for Y.
23. On 15 July 2023, the Council issued the draft EHC Plan for Y.

Analysis

Y’s EHC Needs assessment

24. On receiving Mr X’s request for an EHC Needs assessment for Y, the Council decided to carry out this assessment within the six-week statutory timescales. I do not find fault with the Council for this.
25. The statutory timescales give the Council 16 weeks to advise whether it will, or will not, be issuing an EHC Plan and 20 weeks to issue a Final EHC Plan. These timescales run from the date a person requests an EHC Needs assessment. This meant the Council had until 4 November 2022 to advise Mr X if it was going to issue an EHC Plan for Y and until 2 December 2022 to issue the Final EHC Plan. The Council failed to meet either of these timescales. This was fault.
26. The Council has accepted fault for failing to meet the statutory timescales for issuing its decision about whether to produce an EHC Plan for Y.
27. The Council has now decided to issue an EHC Plan for Y and has issued the draft EHC Plan for Mr X’s comments. The Council has started producing an EHC Plan and must now bring this about to its conclusion with a Final EHC Plan.
28. The Council has offered a suitable remedy to reflect the delays in producing Y’s EHC Plan. The offer of £300 suitably reflects the injustice caused by the Council’s delays on Mr X. The offer to consider a suitable award for any missed provision because of non-adherence with the statutory timescales suitably reflects any injustice to Y.
29. On production of the Final EHC Plan, parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, or the school named in their child’s EHC Plan.
30. Parents can also appeal to the Tribunal about the health and social care aspects of an EHC Plan, although the Tribunal can only make non-binding recommendations on these matters.

Educational Psychologists wider impact

31. The Council says the delay in it producing the EHC Plan for Y was because of limited availability of Educational Psychologists. The Council says the lack of this resource available to it has caused a backlog in its production of EHC Plans.
32. The Council has pointed to research completed by the Department for Education, Educational psychology services: workforce insights and school perspectives on impact, to support this. This research shows there is currently a higher demand for Educational Psychologists than can be met.
33. In response to the lack of Educational Psychologists, the Council has increased its capacity by hiring Educational Psychologist assistants. The Council has also detailed that it will increase its staff body further in September 2023.
34. The Council has also put in place temporary policies allowing parents to commission private advice, which it promises to reimburse up to a set amount, and it has commissioned extra outsourcing advisers.
35. The Council has already evidenced the changes to its policies and extra hiring are having an increase in the timeliness of it completing the EHC Plan process.
36. I am satisfied the Council has identified the cause of its delays in producing EHC Plans and put in place suitable policies and measures to tackle this backlog. The Council’s actions are already showing an improvement in its timeliness in producing EHC Plans and at tackling its backlog. I do not consider further service improvements by the Ombudsman would add to the Council’s response to this matter.

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Agreed action

37. Within one month of the Ombudsman’s decision the Council should:
• Apologise to Mr X and pay him £300 for the time, trouble an uncertainty the Council’s delays have caused.
• Produce the Final EHC Plan for Y.
38. Within two month’s of the Ombudsman’s final decision the Council should:
• Consider if there is any special educational provision included in the Final EHC Plan that Y has missed because of the Council not meeting the statutory timescale’s for production of the Final EHC Plan.
• Contact Mr X to discuss any missed provision with the view to providing a remedy to reflect this missed provision either through a financial award or catch-up provision.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman