Summary: Mrs Y complains about delays in the process leading up to the Council’s issuing of an Education, Health and Care Plan for her son, D. We find the Council failed to meet the statutory timescales and there was significant delay. The Council also failed to maintain appropriate contact with Mrs Y and delayed when responding to her complaint. The delay meant D missed some SEN provision throughout 2023. In our view, the agreed actions listed at the end of this statement will remedy the injustice caused by fault.

The complaint

1. Mrs Y complains about poor communication and delays in the Council’s Education, Health and Care (EHC) needs assessment process for her son, D. She says the delays meant D missed out on the additional support he is entitled to. The delays also caused time, trouble and distress as well as frustrating Mrs Y’s right of appeal.
2. Mrs Y wants the Council to provide the necessary support for her child and provide a financial remedy for the delay and distress caused.

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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. 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)

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How I considered this complaint

5. During my investigation I discussed the complaint with Mrs Y and considered any information she provided.
6. I made enquiries of the Council and considered its response. I also considered the relevant law and guidance which I have referred to in this statement.
7. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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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What I found

What should happen

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 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; 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 (unless certain specific circumstances apply).
11. As part of the assessment councils must gather advice from relevant professionals (SEND 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 a maximum of six weeks to provide the advice.
12. 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 a final EHC plan has been issued.

Summary of key events leading to the complaint

13. Mrs Y’s child, whom I will call D, has special educational needs. D currently attends a mainstream nursery because he is not yet statutory school age. He is due to start full-time school in September 2024.
14. Mrs Y applied for an EHC plan on 25 July 2022. The Council agreed to assess D on 30 September 2022. The Council sought EP advice which was due by 4 November 2022. Due to a shortage of EPs, the Council did not receive the advice until 13 January 2023.
15. The Council issued the first draft of D’s EHC plan on 15 June 2023.
16. Mrs Y complained to the Council in June 2023 because she was unhappy with the time taken to finalise D’s EHC Plan. As a result of the delay, Mrs Y said D missed out on crucial special educational provision.
17. In response to Mrs Y’s complaint on 21 July, the Council acknowledged that – at the time of writing – D’s EHC needs assessment was at day 367. The Council said it should have been completed within 140 days. The Council pointed to the high number of incoming EHC requests as a reason for the delay. It offered its apologies to Mrs Y.
18. The Council consulted with Mrs Y’s preferred school in July 2023. It responded to confirm that it did not have a place for D to join their nursery class in September 2023.
19. Mrs Y submitted a second complaint in August which the Council responded to on 7 November. The Council upheld the complaint and apologised for the delays in the EHC process and for the poor level of communication with Mrs Y.
20. The Council issued D’s final EHC plan on 14 November 2023 naming Mrs Y’s preferred school; a specialist primary school to be attended by D from September 2024.
21. The plan said that D shall remain at his current nursery but with additional funding in place to “…. Ensure delivery and review of the educational provisions set out in Section F of the Plan. The resources available in the school/setting through the banding level will help promote [D’s] academic progress, personal skills development, independence and participation within the learning environment”.
22. Mrs Y says the Council’s delays meant that D missed out on a nursery place at the specialist school which he could have taken up by September 2023.

Was there fault by the Council causing injustice?

23. The Council failed to complete the process and issue a final EHC plan within 20 weeks from the date of Mrs Y’s request in July 2022. It should have issued D’s final plan by mid December 2022. The Council did not finalise the plan until November 2023 which was 68 weeks after the assessment request. The 48-week delay caused Mrs Y avoidable frustration and distress.
24. Throughout the matters complained about, the Council failed to maintain an appropriate level of communication with Mrs Y. It also delayed when responding to her second stage complaint. This further added to Mrs Y’s time and trouble.
25. The significant delay also meant there was some loss of SEN provision for D. Although he has remained at the same nursery since 2022, Section F of the EHC plan issued in November 2023 includes funding for individual learning and support for D. This includes additional intervention such as small group activities and some 1:1 support. In my view, and on the balance of probabilities, I consider it is more likely than not that D would have received this additional provision throughout 2023 had the Council issued the final EHC plan without delay. This is because the records show D’s needs have been longstanding.
26. I have also considered Mrs Y’s complaint that D missed out on a place in the nursery class at the specialist school from September 2023. She says the nursery confirmed it had a space available when she viewed it some months earlier. The Council has confirmed the school is in a neighbouring council’s area and so it cannot ascertain when the final place at the nursery was offered and to whom.
27. In my view, it would not be possible for the LGSCO to accurately determine this either. This is because the school likely received applications and EHC consultations from applicants in its own authority, as well as others. We would not be able to say with certainty whether those applicants had priority over and above D. However, we do agree that the delay has caused Mrs Y some uncertainty.

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Agreed action

28. Within four weeks of my final decision, the Council has agreed to:
• Apologise and pay Mrs Y £750 in recognition of the avoidable distress, time and trouble caused by the poor complaint handling, poor correspondence, uncertainty and delays in the EHC process.
• Pay a further £900 to Mrs Y for D’s educational benefit. This is a symbolic payment in recognition of the provision he missed during the three school terms of delay.
29. The Council will provide us with evidence it has complied with the above actions.
30. We have decided not to recommend service improvements because the Council is already making the following improvements:
• restructuring the SEND assessment service to be more streamlined and efficient as well as increasing the staff in this team.
• commissioned additional EP support in the short term as well as long-term plans to increase the numbers of EPs and make use of Assistant EPs.
• invested an additional £1million to increase the capacity of the EP service and the SEND assessment service which is already helping to reduce backlogs.
• introduced new systems to track reports, established a new SEND Strategic Board with all key partners attending and free SEND advice is now available to schools to help improve early intervention.

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Final decision

31. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. In my view, the agreed actions listed above will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman