Summary: Miss X complained about the Council’s failure to complete an Education, Health and Care Needs assessment for her son within statutory timeframes. We found the Council at fault for delays in the process. The Council has agreed to our recommendations to remedy this injustice.

The complaint

1. Miss X complains about the Council's delay and failure to complete an Education, Health and Care needs assessment for her son within legal time frames, and poor communication with the service. Miss X says this has caused her distress and frustration and her son has not been getting the support he needs.

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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 significant injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

5. I discussed the complaint with Miss X and considered her views.
6. I made enquiries of the Council and considered its written responses and information it provided.
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.

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What I found

Law and administrative background

Education, Health and Care Plans (EHC Plans)

8. A child with special educational needs may have an Education, Health and Care Plan (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.
9. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs 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.
10. Parents have a right of appeal to the SEND Tribunal. Parents must consider mediation before deciding to appeal. This is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
11. The Special Educational Needs and Disability Regulations 2014 say:
• Where mediation has taken place and the parties reach an agreement, if the issues are those in which there is a right to appeal, the local authority must meet the time limits set out in regulation 44, as if the mediation agreement were an order of the SEND Tribunal. (Regulation 42(1)(2))
• If a council refuses to carry out an EHC needs assessment but then the SEND Tribunal orders them to do so, then they must either decide not to issue an EHC Plan within 10 weeks or issue a final EHC Plan within 14 weeks of the order. (Regulation 44(2)(b))

Summary of key relevant events

12. In April 2022, the Council received a request for an Education, Health and Care Needs Assessment (“EHC needs assessment”) for Miss X’s son (“Y”). He was on roll at School 1.
13. In May, the Council decided it would not assess Y. In August, after mediation with Miss X and receiving additional information, the Council overturned this and agreed to assess him.
14. In mid-December, the Council wrote to Miss X saying it agreed to issue an EHC Plan and sent a draft EHC Plan at the same time.
15. At the start of January 2023, the Council held two meetings with Miss X to discuss amendments to the draft EHC Plan.
16. The Council sent consultations to five placements for Y, including the parental preference of School 2. Four said they could not meet Y’s needs. The Council chased School 2 for a response three times between January and February. In mid-February, School 2 said it could offer a placement for Y in September. The Council asked for costings and received the answer by late February.
17. In mid-May, Miss X formally complained to the Council about its delays in completing the EHC needs assessment, and poor communication. She had already tried to complain but the Council initially said it was for the SEND Tribunal. The Council later accepted her complaint.
18. In late May, the Council issued a final EHC Plan. It named School 1 until July and said Y should attend School 2 in September.
19. At the start of June, the Council responded to Miss X’s complaint at Stage One. It said part of the delay was because School 2 did not respond to it in a timely manner. It said it had also chased School 2 for costings in May 2023. Now the Council had issued the final EHC Plan, it said School 1 would receive funding to deliver the provisions set out within it for Y for the end of the term. The Council said it kept Miss X up to date but accepted it could have given her more regular updates. It partially upheld her complaint.
20. Miss X escalated her complaint. At the end of June, the Council sent its Stage Two response. It maintained its explanation for the delays. The Council considered screenshots Miss X sent to show she had tried to call a number of times but did not get a response. It outlined some of the communications it had recorded with and from her, noting it did not log any missed calls from her. It partially upheld this part of her complaint.
21. The Council said it had introduced a new communication service due to concerns of emails and calls not being responded to. It had recently moved to a different telephone system with some technical difficulties. It would remind staff to use the system for making calls and ensuring all communications are recorded on file.
22. At the end of July, Miss X complained to us.
23. In response to my enquiries, the Council said it told Miss X in its complaint responses it did not receive the costings from School 2 until May 2023. This was not the case. School 2 sent it in late February. The Council could not explain the delay in finalising the EHC Plan after this.

Analysis

Delay

24. The Council accepted a significant delay with Y’s EHC needs assessment. At mediation, the Council agreed to assess and said it would begin the process in late August 2022. It should have issued a final plan by 14 weeks; this should have been the end of November 2022. It was not issued until the end of May 2023: a delay of nearly six months. This is fault.
25. The Council said School 2’s lack of communication impacted this and I note the Council did chase it a few times. Nevertheless, the Council has overall responsibility for the EHC needs assessment process which includes complying with legal timeframes. It did not in this case. Further to this, even after the Council had the information it needed in late February, it could not explain why it took a further three months to finalise the EHC Plan. This also meant it gave Miss X an incorrect explanation for some of the delays. This is fault.

Communication

26. The Council did not accept her complaint at first as it said it was for the SEND Tribunal. As it was about delays in the process, rather than a disagreement with any final EHC Plan (as one had not been issued at this point), this was incorrect. This is fault.
27. Miss X sent evidence of attempts to contact the Council and the Council appeared to accept its records of contact with her were lacking. It did not have a full picture of its interactions with her, and so I consider it is more likely than not that the Council fell below expected standards of communication with Miss X. This is fault. It said it now had a system to help deal with these concerns to avoid it happening again. I consider this appropriate.

Injustice

28. These delays caused injustice as Miss X had to wait substantially longer than necessary to receive a final EHC Plan which could have enabled provision to be put in place for Y’s needs sooner. This impacted Y as had it not been for the fault, he should have had access to extra support he was entitled to from December 2022.
29. It also delayed her appeal rights if she disagreed with the contents of the EHC Plan. The Council’s poor communication also caused Miss X avoidable distress and uncertainty about how Y’s EHC needs assessment was progressing and with the handling of her complaint.

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Agreed action

30. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
31. Within one month of the final decision:
• Apologise in writing to Miss X and Y for the delays in the EHC needs assessment process and its communication with her;
• Pay Miss X a symbolic payment of £150 to recognise the distress, frustration and uncertainty caused to her and Y; and
• Pay Miss X £1,800 in recognition of the impact of missed provision for Y caused by the delay in issuing a final EHC Plan. This can be used for Y’s educational benefit.
32. Within three months of the final decision:
• The Council should review its processes to ensure it issues final EHC Plans within statutory timescales and minimises delays. It should send written guidance and reminders to appropriate staff members.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I found fault with the Council which caused injustice to Miss X and Y. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman