Summary: Mrs X complained the Council delayed issuing Child Y’s EHC Plan. She also complained the Council communicated poorly with her about her concerns. Mrs X said this caused avoidable frustration, distress and uncertainty. She said it also affected Child Y’s educational attainment. We have found the Council at fault for its delay issuing Child Y’s EHC Plan. We have also found the Council at fault for its communication with Mrs X. We have made recommendations to remedy the injustice caused.

The complaint

1. Mrs X complained the Council delayed issuing her child’s final EHC Plan. She said this delay caused avoidable frustration, uncertainty and distress. She said it also affected her child’s educational attainment.
2. Mrs X also complained the Council failed to properly communicate with her about her concerns. This caused further avoidable frustration and uncertainty.

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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 Ombudsman’s view, based on case law, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
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)

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How I considered this complaint

6. I discussed the complaint with Mrs X and considered information she provided.
7. I considered information the Council provided about the complaint.
8. Both Mrs X and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.
9. 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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Relevant legislation, guidance and policy

Education, Health and Care Plans

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.

Timescales for the EHC process

11. 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.

Gathering advice for assessments

12. 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;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
13. Those consulted have a maximum of six weeks to provide the advice.
14. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)

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What I found

Summary of key events

15. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
16. In April 2022, Mrs X said it became clear her child, referred to in this statement as Child Y, had additional needs and would need further support in an educational environment. At this time, Child Y attended a pre-school setting.
17. Mrs X said the Council assigned a SEND Caseworker for Child Y in September 2022. In November 2022, Mrs X sought an EHC needs assessment for Child Y.
18. The Council decided not to assess Child Y in December 2022. Following further contact between Mrs X and the Council, the Council reversed this decision. Mrs X said the Council agreed to assess Child Y on 23 December 2022.
19. The Council said it began this assessment in early January 2023, seeking professional advice. This included a request for advice from an educational psychologist (EP). The Council said this advice was due by 7 February 2023, but it did not receive it until 22 April 2023.
20. In May 2023, Mrs X complained to the Council:
1. Mrs X said the Council had not met the 20-week statutory time scale for issuing a final EHC Plan. Mrs X said she had still not received a draft plan to consider.
2. Mrs X said there had been delays at all stages of the process, including with assessments and seeking advice.
3. Mrs X said the Council had failed to communicate with Mrs X, or return messages and emails.
4. Mrs X said the continuing delays and lack of an EHC Plan were affecting Child Y’s educational attainment and wellbeing. The situation was also causing Mrs X avoidable distress and frustration.
21. The Council responded to Mrs X’s complaint on 27 June 2023:
1. The Council said it had received a high number of requests for EHC assessments. This had led to unavoidable delays, which the Council recognised was not acceptable.
2. The Council said it was addressing this by prioritising needs assessments, recruiting extra staff and setting up a new service structure.
3. The Council said there was a national shortage of EPs and a high demand for their services. It said this meant there were delays in EPs providing advice for EHC Plans.
4. The Council agreed its communication with Mrs X had not been to an acceptable standard.
5. The Council upheld Mrs X’s complaint in full. It apologised for the impact of the delays and poor communication on Mrs X and Child Y. It said it believed it would provide a response regarding the EHC Plan by 10 July 2023.
22. In July 2023, Mrs X escalated her complaint to the next stage of the Council's complaints procedure. She said she had not received the update promised and the Council was still failing to communicate with her. She said she had had to decide on a school placement for Child Y without knowing what support or provision would be in place. This had caused further uncertainty and distress.
23. The Council said it decided to issue Child Y with an EHC Plan on 31 July 2023. It said it sent Mrs X copies of the draft plan and the assessment reports in two separate emails. The Council said Mrs X responded, telling the Council she had received copies of the assessment reports, but not the draft EHC Plan.
24. The Council did not reply to Mrs X’s e-mail. Mrs X contacted the Council again on three further occasions in August and September 2023. On the fourth attempt, the Council acknowledged Mrs X’s correspondence. It sent Mrs X a copy of the draft EHC Plan on 15 September 2023.
25. In September 2023, the Council sent Mrs X its final complaint response:
1. The Council apologised for not responding to Mrs X’s requests for a copy of the draft EHC Plan.
2. It apologised it had not updated Mrs X by 10 July 2023, as it said it would.
3. The Council provided details about the actions it was taking to improve services.
4. The Council said Child Y’s needs assessment had now progressed and the Council had sent Mrs X a copy of the draft EHC Plan. The Council accepted its performance had not been good enough.
26. Mrs X told me Child Y started school in September 2023, in her preferred setting, referred to in this statement as School J. The Council said it issued Child Y’s final EHC Plan on 13 November 2023.
27. Mrs X told me the Council had not made financial resources available to School J in good time. Mrs X was concerned this could potentially affect the delivery of the provision in Child Y’s EHC Plan later in the academic year. Mrs X also said the Council had continued not to respond to correspondence, despite the assurances it provided in its final complaint response.

Analysis

Delay issuing EHC Plan

28. Paragraph 11 sets out the timescales for issuing EHC Plans, from the point an EHC needs assessment is sought. In this case, the Council delayed issuing a final EHC Plan by around 33 weeks beyond the statutory timescales.
29. I have found the Council acted with fault, causing Mrs X and Child Y an injustice. The Council’s delays meant Mrs X experienced avoidable uncertainty, distress, and frustration waiting for a finalised plan. The delay also caused avoidable uncertainty and distress around finalising a suitable placement during a key transition for Child Y. It was also unclear what provision would be in place when Child Y started school.
30. Child Y did eventually attend School J, Mrs X’s preferred setting. Mrs X told me School J put some provision in place, based on the draft plan, to address the possible shortfall in provision. This mitigated the injustice caused to Child Y, by ensuring some provision was in place before the Council issued the final EHC Plan in November 2023. Nonetheless, this delay meant Mrs X experienced avoidable frustration and uncertainty about the provision available for Child Y from September 2023.
31. I recognise the Council accepted these delays in its complaint response and apologised to Mrs X. The Council explained the reasons for this delay. Around 10 weeks of this delay was due to awaiting the EP’s advice. The Council said the rest of the delay was due to a significant increase in requests for needs assessments, and the Council’s capacity to meet this need. The Council has provided the Ombudsman with details of the actions it is taking to improve its performance.
32. I consider the Council’s apology and explanation provides a partial remedy for the injustice caused. However, the Council did not fully address the avoidable frustration, uncertainty and distress Mrs X experienced. It also did not address the uncertainty around Child Y’s provision from September 2023. During this investigation, the Council proposed a financial remedy based on the Ombudsman’s guidance in recognition of this injustice. I have addressed this in my recommendations.
33. The Council told me it has confirmed School J is in receipt of the funding necessary to secure Child Y’s provision. Mrs X confirmed this is now the case.

Communication

34. The Council accepted it communicated poorly with Mrs X. It apologised for this in its complaint responses. It reiterated these apologies to Mrs X in its comments to the Ombudsman.
35. I agree with the Council that this poor communication was fault. This caused Mrs X an injustice. Mrs X experienced avoidable uncertainty and frustration, which compounded already existing injustice caused by the Council’s delay issuing the EHC Plan.
36. The Council’s apology provides a partial remedy for this injustice. During this investigation, the Council proposed a financial remedy in recognition of the unaddressed injustice to Mrs X. I have addressed this in my recommendations.

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Agreed action

37. Within four weeks of the final decision being issued, the Council has agreed to:
1. Pay Mrs X the £1000 it offered in recognition of the avoidable frustration, distress and uncertainty she and Child Y experienced because of the Council’s faults. The Council proposed this figure, accounting for the Ombudsman’s Guidance on Remedies. This is at the higher end of the financial remedy recommended for distress and time and trouble. The Council has proposed a financial remedy that suitably recognises the injustice caused in this case.
38. The Council should provide us with evidence it has complied with the above actions.
39. The Council provided a further apology to Mrs X and Child Y in its response to the Ombudsman’s enquiries. I have shared this apology with Mrs X as part of this investigation. I welcome the Council’s further apology. To avoid duplication, I have not recommended it make another.
40. The Council provided details of actions it is taking to improve its services. The Ombudsman has recommended service improvements in other cases, which are relevant to the faults in Mrs X’s case. We will seek evidence of the Council’s compliance with these recommendations. The Council’s actions are ongoing. To avoid duplication of effort, I have not proposed these service improvements again.

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Final decision

41. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman