Summary: Mrs X complained the Council failed to produce the final Education Health and Care Plan for her child within the statutory timescales. Mrs X says the delay caused her child to miss educational support. We found fault by the Council for delays outside the statutory timescales, caused by a delay in obtaining an Educational Psychologist’s advice. The Council will pay Mrs X £300 for the distress and uncertainty the delay has caused.

The complaint

1. Mrs X complained the Council failed to produce the final Education Health and Care (EHC) Plan for her child within the statutory timescales. Mrs X says the delay caused her child to miss educational support.
2. Mrs X says the delay has caused her child to miss educational support.

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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. 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.
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 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

7. I considered the information provided by Mrs X and discussed the complaint with her. I considered the Council's response to Mrs X's complaint and the information it provided in response to our initial enquiries.
8. Mrs X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Relevant Law and Guidance

9. 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)
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 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.
11. 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.
12. When a council sends a draft plan to a child's or young persons' parent or guardian 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))
13. 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 after a final EHC Plan has been issued.

What happened

14. In December 2022, Mrs X requested an EHC Needs assessment for her child, Y. The Council agreed to carry out this assessment.
15. In May 2023, Mrs X made a stage one complaint to the Council about delays in completing the EHC needs assessment. Mrs X remained unsatisfied with the Council's stage one response and asked for her complaint to be escalated to stage two. Mrs X said the Council had failed to adhere to statutory timescales. Mrs X said as a resolution, Y's school had offered to provide an educational psychologist (EP) to complete the required assessment on the condition that the Council refunded the costs, but the Council did not accept the offer.
16. On 19 June, the Council responded to Mrs X's stage two complaint. The Council upheld Mrs X's complaint about its failure to meet statutory timescales. It apologised to Mrs X and explained the delay in allocating the assessment work was due to a significant number of statutory assessments the educational psychology service had been requested to complete and a national shortage of EPs.
17. The Council said it had taken steps to address these issues and recruited a new experienced principal EP and secured more support using agency EPs. The Council also accepted there had been poor communication regarding offering an EP assessment for Y. The Council apologised to Mrs X. The Council said it could not use an EP assessment arranged by schools or parents as part of its evidence when assessing any child's needs.
18. The Council confirmed that an EP had been allocated to complete the assessment for Y.
19. Following the assessment, the panel agreed to issue an EHC Plan for Y. A final Plan was issued on 31 July 2023.

Analysis

20. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
21. The Council agreed to carry out a EHC needs assessment for Y. In accordance with statutory timescales the Council had 16 weeks to decide whether to issue an EHC Plan and 20 weeks to issue a final EHC Plan. This meant the Council had until the end of March 2023 to advise Mrs X if it was going to issue an EHC Plan for Y. The EP report should have been available to the Council by the end of February 2023 for the Council to have met the end of March deadline. The EP report was not completed on time because the Council was unable to recruit enough EPs to meet demand. This was fault.
22. The EP completed the report for Child Y and the panel agreed to issue Child Y with an EHC plan. The final EHC Plan should have been issued by 27 April 2023. The Council issued the final Plan on 31 July 2023. This was fault. The delays have had an impact on both Mrs X and Child Y, causing distress, frustration and uncertainty.
23. While I accept there are justifiable reasons why the EHC Plan process took longer than it should; the Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. I am pleased to see the Council is making efforts to resolve the lack of EPs, so I have not made any further service improvement recommendations.
24. To remedy the injustice caused by the delays in the EHC process, I recommend the Council pay Mrs X £300 to acknowledge the distress, frustration and uncertainty caused to her and Y by the Council's failure to issue the final EHC Plan in line with statutory timescales. This remedy is calculated at £100 per month from the date the Council should have issued the final EHC Plan in April 2023 until 31 July 2023. The Council has agreed to this recommendation.
25. I have not recommended a payment for any potential loss or delay in special educational provision to Child Y because the EP assessment and support set out in the final EHC plan should identify the special educational support Child Y now needs. Therefore, the Plan should take account of any impact in delay in SEN provision. If Mrs X feels it does not, then she has a right of appeal to the tribunal.
26. Mrs X also complained about the Council's decision not to allow Y's school to source an EP report. This was a decision the Council was entitled to make as it ultimately decides what should be in the final EHC Plan.

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Agreed action

27. Within one month of the final decision the Council will pay Mrs X £300 to acknowledge the distress, frustration and uncertainty caused to her and Y by the Council's failure to issue the final EHC plan in line with statutory timescales.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have found fault by the Council causing an injustice to Mrs X and Y. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman