Summary: Miss X complained the Council failed to assess her child’s Education, Health, and Care needs within statutory timescales. There were delays which caused avoidable distress for Miss X and her child. The Council agreed to pay a financial remedy to Miss X.

The complaint

1. Miss X complains the Council failed to assess her child D’s Education, Health, and Care (EHC) needs within statutory timescales, after it agreed to carry out a needs assessment in late-2022. She also says the Council did not respond in good time when she chased this up. Because of this, Miss X says:
• D does not have an EHC plan in place because the Council has delayed its decisions. D has missed special educational needs (SEN) support and fallen further behind in their education. They regularly refused to go to school during the 2022/23 school year because their school could not meet their needs without an EHC plan. This affected D’s mental health; and
• Miss X has experienced significant stress.
2. Miss X wants the Council to:
• finish its EHC needs assessment, including an assessment from an Occupational Therapist, and issue D with a suitable EHC plan; and
• communicate with Miss X properly and respond to her queries in good time.

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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. 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)

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How I considered this complaint

6. I considered:
• information provided by Miss X and discussed the complaint with her;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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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What I found

What should have happened

Education, Health, and Care plans

9. A child with special educational needs may have an Education, Health, and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them.
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 Special Educational Needs and Disability (SEND) Regulations 2014. Councils should have regard to statutory guidance and only depart from it where there are good reasons. The guidance says:
1. a child’s parent or school has the right to ask a local authority to carry out an EHC needs assessment;
2. where a council receives a request for an EHC needs assessment it must notify the family of its decision about whether it agrees to assess within six weeks;
3. 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;
4. if a council decides following its assessment not to issue an EHC plan, it must inform the child’s parent within a maximum of 16 weeks from the request for assessment; and
5. 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).
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;
• 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. When a council requests advice, those supplying the information must respond in a timely manner and within a maximum of six weeks from the date of the request.
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. Families 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. The right of appeal only arises when the Council issues the final plan.

The Council’s complaint procedure

14. The Council has a two-stage process.
• Stage one. The complaint will be investigated by a senior member of staff. They will send a response within 20 working days, or will let the complainant know if this will take longer.
• Stage two. An independent senior manager will review the complaint. They will send a response within 20 working days, or will let the complainant know if this will take longer.

Summary of key events

15. Miss X asked the Council to carry out an EHC needs assessment for D in November 2022. A month later, the Council told her it had agreed to carry out an assessment.
16. In July 2023, after Miss X had complained and then come to the Ombudsman, the Council decided it should issue D with an EHC plan. It then issued the final plan in September 2023, ten months after Miss X asked for the assessment.

My findings

Delays in EHC needs assessment

17. We expect councils to follow statutory timescales set out in the law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
18. The Council should have completed its assessment and decided whether to issue an EHC plan within 16 weeks. It took 36 weeks to make this decision. This delay was fault and meant the Council failed to issue D’s final EHC plan within statutory timescales.
19. Where a Council decides to issue an EHC plan, it must send the final plan within 20 weeks of it receiving a request for an EHC needs assessment. Therefore, the Council should have issued D’s final EHC plan in March 2023. As a result of the Council’s delay completing D’s assessment, it did not issue the final plan until September 2023, a delay of 24 weeks. This delay was fault. It also frustrated Miss X’s right to appeal to the SEND Tribunal about the content of the plan because she could not do so until the Council issued a final plan.
20. In its complaint responses, the Council accepted there was delay and explained this was because of high demand on its SEN service, and a shortage of Educational Psychologists and Occupational Therapists. In these circumstances, we consider the fault to be service failure. I do not consider I should recommend specific improvements to the Council’s services as the circumstances are outside its control and it is already taking steps to address the issues. The Council has an action plan in place to address the shortage of Educational Psychologists and continues to recruit and work with agencies.
21. Although the Council accepted fault, it did not offer any remedy for the injustice caused to Miss X and D by the delay. I recommended the Council make a symbolic payment to recognise the distress, frustration and uncertainty caused.

Communication with Miss X

22. Miss X said the Council did not respond in good time when she chased up these issues. I found:
• at Stage 1 of the complaints procedure, the Council took 26-working-days to respond, which is longer than it should have taken. However, a manager from the Council had already rung Miss X to explain the Council’s position, within the 20-working-day response deadline. Therefore, this delay in written response did not change anything;
• at Stage 2, the Council took 24-working-days to respond. I do not consider the slight delay caused Miss X significant injustice. Before Stage 2 the Council had already explained its position on the complaint and told Miss X an Educational Psychologist assessment would not be available for at least another 2 to 3 months; and
• in general, the Council responded to Miss X’s comments and queries outside the complaints process in good time.
23. I appreciate the delays in the EHC assessment process caused Miss X significant frustration and distress. However, I did not find fault causing injustice in how the Council communicated with Miss X and responded to her queries.

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Agreed action

24. Within one month of our final decision the Council will pay Miss X £525 to recognise the distress, frustration and uncertainty caused to her and D by the Council’s failure to meet statutory timescales. This remedy is calculated at roughly £100 for each month of delay.
25. The Council will provide us with evidence it has complied with the above action.

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Final decision

26. I have completed my investigation. There was fault by the Council which caused avoidable distress for D and Miss X. The Council agreed to pay a financial remedy to Miss X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman