Summary: Ms X complained the Council took too long to issue an Education, Health and Care Plan for her client’s daughter, Z. We found fault because there was a significant delay in issuing Z’s plan. This caused avoidable distress and uncertainty for Z and her father, Mr Y. To remedy the injustice caused by this fault, the Council has agreed to apologise and make a payment to Mr Y.

The complaint

1. Ms X complains about the delay in completing her client’s daughter, Z’s, Education, Health and Care Plan (EHC Plan) needs assessment after the Council agreed to carry this out in March 2023. Ms X also complains the Council has still not issued Z’s EHC Plan to date and that Y is still not receiving the specialist assistance she needs to access a suitable education.
2. Ms X says this has caused the family distress and frustration and means Z has lost the opportunity to benefit from the specialist assistance she should be receiving.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. The First-tier Tribunal (Special Educational Needs and Disability (SEND)) 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).

Back to top

What I have and have not investigated

7. My investigation ends in March 2024 which is when the Council issued Z’s first Final EHC Plan.

Back to top

How I considered this complaint

8. I have considered all the information Ms X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Ms X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

Back to top

What I found

Special educational needs

10. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
11. The EHC Plan is set out in sections. Section F of the plan is about the special educational provision needed by the child or the young person. Section I is about the name and/or type of educational placement set out in the plan.

Timescales and process for EHC Plan assessment

12. 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 the following:
• where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks;
• if the council decides not to conduct an EHC needs assessment, it must give the child’s parent or young person information about their right to appeal to the SEND Tribunal;
• 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;
• if the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks; and
• if the council goes on to issue an EHC Plan, 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).

Appeal rights

13. There is a right of appeal to the SEND Tribunal against a decision not to carry out an EHC needs assessment or reassessment. 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 a Final EHC Plan has been issued.

What happened

14. I have set out below a summary of the key events. This is not meant to show everything that happened.
15. Ms X is representing her client, Mr Y, and his daughter Z. Z is a school-age child who is now in year 7 at secondary school.

2023

16. At the beginning of March 2023 and following an appeal to the SEND Tribunal, the Council agreed to carry out an EHC needs assessment (the assessment) on Z. The assessment would help to decide if she needed an EHC Plan. This meant that if the Council then decided Z needed an EHC Plan, it should have completed the process at what would normally be week 20. In this case, because the process started at the stage of agreeing to assess (week six in the process), the end of the process should be reached 14 weeks later.
17. As part of the assessment, the Council requested advice from its in-house educational psychologist (EP) service.
18. At the end of May 2023, Ms X asked the Council for an update. The Council advised it was waiting for advice from its EP to decide whether Z met the need for an EHC Plan. The Council also advised that at the time it was taking around 42 weeks to finalise EHC Plans due to an EP shortage .
19. Ms X then complained to the Council in mid-June 2023. This was 14 weeks after the Council had agreed to assess and was the date by which the Council should have issued the first Final EHC Plan. Ms X was concerned about the suggestion of a 42-week wait for Z’s potential EHC Plan and the effect this would have on her education, especially as she was due to move to secondary school in September 2023.
20. The Council replied two days later and again confirmed the delay was due to EP shortages. It said that an EP had been allocated to Z and should be in contact soon.
21. The EP carried out their assessment of Z in mid-July 2023.
22. In mid-October 2023, Ms X again contacted the Council to ask when the EHC Plan would be ready. She advised the Council that Z had struggled in her transition to secondary school and was now attending part-time.
23. At the end of October 2023, the Council received the report from the EP following the assessment in July. The Council issued a draft EHC Plan to Mr Y at the beginning of November 2023.
24. Following comments on the draft plan from Mr Y, the Council issued a second draft EHC Plan early in December 2023.

2024

25. In mid-January 2024, the Council passed the case from its assessment team to its placements team.
26. At the end of January 2024, the Council declined Mr Y’s request for a special school to be considered and named in Z’s EHC Plan. It said Z’s current secondary school (School A), had not provided evidence of Z’s difficulties and how it had tried to mitigate these in a mainstream setting.
27. After speaking to Mr Y, the Council contacted School A to request updated information and evidence of how it had responded to Z’s needs.
28. At the beginning of February 2024, School A provided the Council with evidence of the support in place for Z and challenges it would have in meeting the Section F provision detailed in the draft EHC Plan.
29. In mid-February 2024, the Council’s SEND panel assessed the evidence presented and declined Mr Y’s request for a specialist placement.
30. At the end of February 2024, the Council issued its third draft EHC Plan.
31. After further discussions, the Council issued its first Final EHC Plan in mid-March 2024. The plan named Z’s existing mainstream secondary school, School A, in Section I.

Analysis

EHC Plan process

32. Statutory timescales state that from beginning to end, the EHC needs assessment process and any EHC Plan resulting from this should take no more than 20 weeks to complete.
33. Z’s first Final EHC Plan should have been issued by mid-June 2023. Instead, it was issued in mid-March 2024, nearly 40 weeks later and with a delay of over nine months.
34. In response to my enquiries, the Council advised there were issues regarding a shortage of EPs available locally which led to a delay in finding an EP to complete the report.
35. The Council also advised that it had then outsourced the report to be completed by a locum EP. This had led to additional delays as the EP had not completed the report in a timely manner despite chases from the Council and assurances it would be completed. The Council made the decision not to re-allocate the case as the assessment had already been completed in mid-July 2023. I am satisfied, that in the circumstances of this complaint, this was an appropriate response.
36. Whilst I acknowledge these issues, this still led to a significantly delayed first Final EHC Plan. In the circumstances of this complaint, not issuing the plan within statutory timescales is sufficient for me to make a finding of service failure. This will have led to avoidable delay, uncertainty and distress for Mr Y and Z.
37. The Ombudsman recognises the national shortage of EPs available to complete reports for EHC needs assessments, leading to delays in the rest of the EHC Plan process. Our current approach is to remedy the injustice caused by this by recommending a symbolic payment of £100 per month from the date the EHC Plan should have been issued to when it was. On this basis, I have made a recommendation below to remedy the injustice caused to Mr Y and Z.
38. As part of the agreed actions in an unrelated complaint, the Council sent the Ombudsman an action plan regarding the recruitment and retention of EPs and how it recognised this was an ongoing issue. The Council has taken steps to secure additional EP capacity as part of this plan. With this in mind, I do not intend to make any further recommendations regarding service improvements the Council should make in relation to this.

The Council’s suggested remedy

39. In response to my enquiries, the Council suggested a symbolic remedy totalling £750. This was to take account of the delay caused by the EP issues and delays caused by communication issues, which led to uncertainty and distress for Mr Y. I am not satisfied, that in the circumstances of this complaint, this is an appropriate remedy. I have made a recommendation below to reflect this.

Back to top

Agreed action

40. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mr Y for the delay in issuing Z’s first Final EHC Plan; and
• make a symbolic payment to Mr Y of £900 to reflect the distress and uncertainty caused by the nine-month delay in issuing the eventual plan.
41. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
42. Payments made are in line with the Ombudsman’s guidance.
43. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

44. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman