Summary: Mrs X complained the Council delayed completing her child, Y’s, Education, Health and Care (EHC) plan. The Council was at fault for the delay. It has agreed to apologise and pay Mrs X £500 to recognise the frustration and uncertainty the delays caused her.

The complaint

1. Mrs X complained the Council delayed completing an EHC plan for her child, Y. Mrs X said the delay meant Y did not receive all the education and support they needed. She said this caused her unnecessary frustration.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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.

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How I considered this complaint

7. I have considered:
• the information provided by Mrs X and discussed the complaint with her.
• information provided by the Council in response to our initial enquiries.
• the relevant law and guidance and the Ombudsman's guidance on remedies.
8. Mrs X and the Council had the opportunity to comment on a draft of this decision. I considered any comments I received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

9. Children 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.
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 assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC plan after an assessment, it should prepare a draft EHC plan and send it to schools that may be able to accept the child or young person and meet their needs. Schools should respond to the consultations within fifteen calendar days; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC plan.
11. There is a right of appeal to the SEND Tribunal about the educational provision and placement named in a child’s EHC plan. This appeal right is only engaged once the final EHC plan has been issued.

What happened

12. Mrs X has a child, Y, who attends a mainstream school. In October 2022, Mrs X asked the Council to carry out an EHC assessment. In early December Mrs X complained to the Council that she had not been notified of whether the Council intended to assess Y. The Council decided to assess Y just over nine weeks after Mrs X’s request. It responded to the complaint two days later and apologised for the delay.
13. Mrs X contacted the Council twice in February 2023 for an update. It told her it was waiting for an EP report and that once this was received it would issue the draft.
14. In early March 2023 Mrs X complained to the Council. She said she had not yet received a draft plan or been told whether the Council would produce a plan. The Council accepted there was a delay and upheld the complaint.
15. Mrs X remained unhappy and requested that her complaint be escalated. She asked for a definitive date by which the plan would be issued and financial compensation for the impact on her child.
16. The Council sent Mrs X a final complaint response in June 2023. It said it had received the EP advice and all the other advice it had requested. It would issue a draft plan but could not provide a definitive date. The Council said the EP report stated Y was doing well academically at school and it considered Y was receiving appropriate support at school. It therefore did not consider it appropriate to provide financial compensation.
17. It added that the Council was implementing significant changes to its processes as well as recruiting additional educational psychologists and EHC plan writers to address its current backlog and to reduce delays.
18. The Council issued Y’s draft plan in July 2023 and final plan in August 2023.
19. Mrs X says Y had to move schools as the school was not taking Y’s needs seriously.

My findings

20. 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. When Mrs X requested an EHC assessment the Council should have made the decision whether to assess within six weeks. It took three weeks too long, which was fault. The Council accepted this fault and apologised for the delay.
21. The Council then had to progress the assessment ‘in a timely manner’ so it could issue Y’s final EHC plan within 20 weeks of the assessment request. However, EHC plan assessments must include advice from an EP, which should be received within six weeks of the Council requesting it. The EP did not provide their advice until late March 2023. This delay was fault.
22. There is a national shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. Y’s wait to be seen by an EP meant their EHC assessment took longer than the statutory timescales allow for. The Council was at fault as Y’s plan was issued after 43 weeks, which is 23 weeks longer than the statutory timescales allow for.
23. We are currently considering another case against this Council regarding delays in the EHC plan process caused by a shortage of EPs. I have not therefore recommended service improvements as they will be addressed through that investigation.

Injustice

24. The Council, its complaint response to Mrs X, said Y was doing well academically so it did not recommend financial compensation. However, Y has since moved schools due to Mrs X’s concerns about the support they were receiving.
25. I cannot say to what extent Y missed out on provision because of the delays. However, the delay in the EHC assessment caused Mrs X uncertainty and frustration while she awaited Y’s final EHC plan and meant her appeal right was delayed.

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Agreed action

26. Within one month of the final decision, the Council has agreed to apologise and pay Mrs X £500 to acknowledge the frustration and uncertainty she experienced due to the delay in completing Y’s EHC plan. That equates to £100 per month for the delay.
27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. I have completed my investigation. The Council was at fault causing an injustice which it has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman