Summary: Mrs X complained the Council failed to complete and issue her daughter, Y’s, Education, Health and Care (EHC) plan within the statutory timescale and failed to communicate with her properly. The Council was at fault. The Council will issue Y’s final EHC plan without further delay and pay Mrs X a symbolic amount of £750 to recognise the frustration and uncertainty caused to her.

The complaint

1. Mrs X complained the Council had failed to complete and issue her daughter, Y’s Education, Health and Care Plan within the statutory timescale and failed to communicate with her properly. Mrs X said that, as a result, Y would miss out on appropriate specialist provision, and Mrs X had been caused uncertainty, frustration and distress.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
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 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.

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How I considered this complaint

6. I read the documents Mrs X provided and discussed the complaint with her on the phone.
7. I considered the documents the Council sent in response to my enquiries.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and statutory guidance

9. 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.
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. 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. (The Code 9.148)

What happened

13. Y lived at home with her parents and older sibling. Y had a genetic condition that meant she had some health and developmental needs. Y was due to start primary school in September 2023.
14. Mrs X asked the Council to assess Y’s needs for an EHC plan in September 2022.
15. The Council agreed to carry out the EHC needs assessment in November 2022. It began to gather advice from the relevant professional.
16. The Council allocated a new caseworker (Officer O) to Y in December 2022. Mrs X sent Officer O several emails over December 2022 and January and February 2023. Officer O responded to one of Mrs X’s emails in February 2023. They told her the delay was due to a nationwide shortage of EPs and Mrs X should talk to the EP directly.
17. Mrs X complained to the Council at the end of March 2023. She said the Council:
• had not yet obtained the EP report;
• had not issued a final EHC plan in line with the timelines set out in the guidance and Y was at risk of missing out on her preferred school; and
• had not communicated with her about the delay.
18. The Council responded to Mrs X’s complaint in April 2023. It said it:
• apologised for the poor communication;
• the delay was due to a national shortage of EPs;
• would nominate an officer within ten working days who would agree how and when they would provide regular updates about the EHC needs assessment.
19. Dissatisfied with the Council’s response Mrs X complained to us.
20. The Council said the EP assessment with Y was completed in June 2023.
21. The Council told Mrs X it would issue an EHC plan for Y in mid-July 2023. Mrs X asked the Council to name pre-school A in the EHC plan.
22. The Council provided a draft EHC plan for Y in August 2023 and asked Mrs X for her comments. Mrs X told me she responded within two weeks. The Council has not yet issued the final EHC plan for Y.
23. In response to my enquiries the Council said it recognised there were delays with the EHC needs assessment and it did not meet the statutory deadline. And it apologised for the delay with the EP service.
24. The Council said it would:
• apologies again to Mrs X for the further delay since its complaint response in April;
• offer a symbolic remedy of £300 to acknowledge the time and trouble caused by the uncertainty and delay in completing the EHC needs assessment; and
• once the EHC plan was issued it would consider if there was any special educational provision in the final plan that Y had missed due to the delay, and consider an appropriate remedy such as catch-up provision, in discussion with Mrs X.
25. The Council also stated it has a recovery plan in place to reduce the delays to EHC needs assessments in the future.

My findings

26. Mrs X requested an EHC needs assessment in September 2022, in good time for Y starting at school the following year. The Council should have completed the assessment and issued the final EHC plan within 20 weeks and by 15 February 2023. The Council had not issued the final plan at the date of this decision. The Council had a duty to obtain EP advice before it could complete the assessment. The shortage of EPs to complete an assessment caused a delay in the EHC assessment process. The delay of 29 weeks is service failure which is fault. It caused Mrs X frustration and uncertainty and delayed her right of appeal to the SEND tribunal about the content of the plan. I recommended an appropriate remedy below.
27. I cannot say what injustice the delay has caused to Y, however the Council has suggested an appropriate course of action to identify and remedy any injustice caused to her by its service failure.
28. During the needs assessment process Mrs X tried to contact her caseworker several times. Mrs X only received contact from Officer O on two occasions. Once in February in response to Mrs X’s queries about the delay and once in July to inform her the Council would issue an EHC plan. In April the Council told Mrs X it would agree how and when a caseworker would provide regular updates, that did not happen. The poor communication and failure to complete the identified improvement was fault. It caused Mrs X further frustration and uncertainty and I recommended an appropriate remedy below.
29. The Council had already taken action to increase its Educational Psychology and Special Educational Needs Service capacity. This was agreed at a Council Cabinet meeting on 25 July 2023, the details of which are available on its website. I therefore did not make any additional service improvement recommendations on that point.

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Agreed action

30. Within one month of the final decision the Council will:
• issue the final EHC plan;
• write to Mrs X and apologise for the frustration and uncertainty caused to her by the delay in the EHC assessment process, and the poor communication;
• pay Mrs X a symbolic amount of £750 to recognise the frustration and uncertainty caused to her by the delay, and a further £150 to recognise the uncertainty and frustration caused to her by the Council’s poor communication.
31. Within one month of issuing the final EHC plan the Council will consider any injustice caused to Y as set out in paragraph 24.
32. Within three months of the final decision the Council will review how SEN caseworkers keep families updated during EHC needs assessments that are outside timescales, and how it implements and monitors recommendations made during complaint investigations. The Council will identify any improvements that are necessary and create an action plan to implement the improvements.
33. The Council will provide us with evidence it has complied with the above actions and provide us with copies of the action plans.

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Final decision

34. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice and avoid the same faults occurring in the future.

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Investigator's decision on behalf of the Ombudsman