Summary: The Council was at fault, because of a delay in completing a child’s education, health and care needs assessment. This delay caused the complainant frustration, for which the Council has agreed to formally apologise, but had no other significant impact. The Council has also provided evidence to show it is taking positive action to improve the timeliness of its service, and so we make no recommendations for any other improvement.

The complaint

1. I will refer to the complainant as Miss F.
2. Miss F complains the Council missed the statutory deadline to issue the education, health and care (EHC) plan for her son, C, which means he had to start Reception in September 2023 without his plan in place. She says this caused her anxiety and stress, and also meant she was required to attend meetings with several members of school staff, to ensure they understood the support C needed.

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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)

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How I considered this complaint

4. I reviewed Miss F’s correspondence with the Council, C’s EHC plan, and sought updated information from the Council.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. C has a physical disorder which affects his learning and development. After attending nursery, he started Reception at a mainstream primary school in September 2023. Prior to this Miss F had requested an EHC needs assessment for him.
7. In May Miss F made a formal complaint to the Council. She said the assessment process was now 12 weeks in, but C still had not been assessed by an educational psychologist. She highlighted that C was due to start school soon and feared he would not cope with this environment without an EHC plan.
8. The Council responded in June. It explained there was a national shortage of educational psychologists, and that the Council had also experienced a significant increase in the number of requests for assessment, and this was the reason for the delay. However, it said C would be allocated to a psychologist at the end of June.
9. The Council also said it was providing additional funding to schools which would receive new pupils in September 2023, whose EHC needs assessments were not yet complete. This was to allow them to provide additional support to those children. The Council noted the schools should be liaising with the children’s nurseries to produce transition plans.
10. The Council explained it had put in place a recovery plan and was working to recruit new staff to its special educational need (SEN) and educational psychologist (EP) teams.
11. Miss F submitted a stage 2 complaint the following day. She said the Council had not explained specifically what support C would receive without his EHC plan. She described his level of need and said the school could not properly support him without the plan.
12. The Council responded in July. It said C’s school would be able to use the information Miss F had provided, as part of the needs assessment, to plan his support, and that it would ensure the school created a suitable transition plan in conjunction with the nursery. The Council explained the additional funding it was providing would allow the school to recruit and deploy its staff to provide the support C needed.
13. The Council acknowledged it was unlikely C would have an EHC plan in place by September, but reiterated the challenges it was facing and the steps it had taken to fill vacancies in its teams. The Council also confirmed C’s case had now been allocated to an educational psychologist.
14. Miss F then complained to the Ombudsman on the same day.

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Legislative background

15. A child with special educational needs may have an 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.
16. 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.

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Analysis

17. Miss F requested the Council complete an EHC needs assessment for C on 10 January 2023. The Council had 20 weeks to complete this process, including issuing his EHC plan, which meant it should have done so by 29 May; but it did not issue C’s plan until 3 October, meaning it missed this deadline by a substantial margin. This, inevitably, is fault.
18. I acknowledge the Council’s explanation for this, and I note the details of the recovery plan it has implemented to improve the timeliness of its service. I will return to this point presently.
19. In terms of the injustice this fault has caused to Miss F and to C, I am conscious C has significant needs. His EHC plan includes various elements of 1:1 support, and explains that he has a poor understanding of physical danger and can put himself at risk if not properly supervised. I appreciate Miss F’s concern about the prospect of C starting school without a plan in place.
20. However, I find the Council’s point persuasive, that there was enough information available for the school to put reasonable interim support in place while waiting for C’s plan. The fact the plan had not yet been issued did not mean C’s support needs were unclear, and there were a series of meetings between relevant parties in the months before C started school, to allow them to draw up a transition plan. The Council also provided funding to allow the school to arrange additional support for C’s needs.
21. I also cannot overlook that C was at school without an EHC plan for only approximately three weeks. I have seen no evidence to suggest the absence of the plan caused any significant impact in that short period of time.
22. I am conscious Miss F has requested the Council provide compensation to reflect the impact of the delay. Our published guidance on remedies says we will consider recommending a financial remedy, where a delay in producing an EHC plan has caused a substantive loss of provision to the child or young person in question. For the reasons I have set out, I do not consider that to be applicable here.
23. I note also Miss F says she sought legal advice and incurred solicitor’s fees in the process, which she believes the Council should reimburse. However, we do not normally recommend the reimbursement of legal fees, because we do not consider complainants should generally require a solicitor’s assistance to pursue a complaint. And, indeed, there is no evidence here that Miss F’s solicitor made any difference to the progress of her complaint.
24. I am therefore not persuaded that a financial remedy is appropriate in this case. I do, however, accept Miss F has suffered stress and frustration because of the delay, and the Council should write a properly constituted letter of apology to her to acknowledge this. I make a recommendation to this effect.
25. I also asked the Council to provide more details of its recovery plan, and the progress it made with it. The Council told me:

“The Recovery Plan is on track. We have commissioned agency staff to deal with the backlog and to add capacity in both the EP team and the SEN team. This includes [a] contract with [name of provider] to deliver 240 EHC assessments over a 6-month period. 

“We have added capacity to the SEN team - two additional SEN Advisors and two additional SEN Case Workers. All vacancies in the SEN team have now been filled.

“We continue to recruit to vacancies in the EP team and will continue to use agency staff to cover vacancies.

“As a result of these actions, we expect to see a significant improvement in the timeliness of EHC assessments. We are meeting with the [Department for Education] on a monthly basis to review our position.”

26. Although I am not in a position to judge objectively how well the Council’s plan is working, I consider it clear there is no useful additional recommendation the Ombudsman can make at this time. This is especially so given the ongoing Government oversight of the Council’s performance in this respect.

Conclusions

27. The Council was at fault for the delay in completing C’s EHC needs assessment and issuing his EHC plan. However, it took steps to mitigate this, and there is no evidence C suffered any significant negative impact during the short period he was without an EHC plan after he started school.
28. There is some injustice to Miss F in the frustration she suffered because of the delay, and the Council should formally apologise for this, but I do not consider any other remedy appropriate here.
29. I am satisfied the Council is taking positive action to improve its service and make no further recommendation in this respect.

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Agreed action

30. Within one month of the date of my final decision, the Council has agreed to write a formal letter of apology to Miss F, acknowledging the fault and its impact on her. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation with a finding of fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman