Summary: Mrs X complains the Council failed to follow the statutory time limits for dealing with her son’s Education, Health and Care needs assessment and issuing his Education, Health and Care Plan. On the evidence provided we intend to find fault with the Council for delay and have recommended a symbolic payment for the distress and frustration caused to Mrs X.

The complaint

1. Mrs X complains the Council failed to issue her son’s Education, Health and Care Plan (EHC Plan) and failed to follow the statutory time limits in dealing with the Education, Health and Care needs assessment.
2. This caused frustration and distress to Mrs X.

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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. 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)
5. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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

8. I spoke with Mrs X and considered the information she provided.
9. I made enquiries with the Council and considered the information it provided.
10. I considered relevant law and guidance, as set out below and our guidance on remedies, published on our website.
11. Mrs 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

Education, Health and Care Needs 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 needs 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 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. 
13. 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);  
14. As part of the assessment councils must gather advice from relevant professionals.

Education, Health and Care Plan

15. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The Plan sets out the child’s needs and what arrangements should be made to meet them.

Service failure

16. The Ombudsman’s view, based on caselaw, 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)

What happened

17. Mrs X has a son Y, who has global developmental delay and Autism.
18. Mrs X sought an EHC needs assessment in February 2023. The Council agreed this and told Mrs X a few weeks later.
19. On 27 February the Council asked for reports from various experts to be completed by 10 April.
20. The date of the reports are 30 January (Occupational Therapist), 3 April (Speech and Language Therapy) and 25 July (Educational Psychologist).
21. On 19 April Mrs X confirmed she would be happy with a virtual appointment with the Educational Psychologist (EP) because of the waiting time for an appointment. An EP was allocated on 22 June.
22. On 27 September Mrs X sent a complaint to the Council as it had been 32 weeks since the Council agreed to carry out the EHC needs assessment. Also, the Council had not updated her for 10 weeks.
23. The Council response on 29 September gave reasons for the delay (but not offered as an excuse). These included:
• Recruitment and retention of EP’s;
• Since Covid the requests for assessment have risen significantly to over 3500 per year;
• SEND inspection of Essex in 2019 highlighted a significant weakness with the quality of EHC Plan’s. The Council put in place an extensive improvement plan which was recognised in May 2022 when Ofsted and CQC revisited the Council and found this was no longer an area of significant weakness;
• The Council is planning changes to staffing to increase the frequency of communication to families.
24. Mrs X was unhappy with this response and brought her complaint to the Ombudsman in October.
25. The Council agreed to issue an EHC Plan on 2 January 2024 and the draft was sent to Mrs X on 15 January and completed on 24 January.

Analysis

26. The Council decided to carry out an EHC needs assessment for Child Y within six weeks of Mrs X’s request. This was within the statutory timescale and was not fault.
27. Under the regulations in paragraphs 12 and 13 above the EHC Plan should have been issued by early July 2023. This is a delay of six months by the Council. The delays have had an impact on both Mrs X and Y. It caused Mrs X frustration and uncertainty about whether Y would have received support sooner. It also meant Mrs X’s appeal rights were delayed.
28. In response to Mrs X and to our enquiries the Council say the delay was due to the shortage of EP’s. The Ombudsman is aware there is a national shortage of public and private EP’s. While I accept there are justifiable reasons the EHC needs assessment has taken longer than it should, the Ombudsman can make findings of fault where there is a failure to provide a service within statutory timescales regardless of the reasons for that service failure.
29. There was also delay by the Council from receipt of the EP report in July 2023 until January 2024.
30. I find fault with the Council for delay from receipt of the EP report.
31. Mrs X says the Council failed to communicate to her for ten weeks, causing frustration, confusion and distress. This is fault by the Council.

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Agreed action

32. Within a month of the final decision, the Council should:
• Send a written apology to Mrs X for failure to keep her updated and for the delay stated above;
• Pay Mrs X £600.00 to recognise the distress, frustration and uncertainty caused to her and Child Y by the Council’s failure to issue the final EHC plan in line with statutory timescales. This remedy is calculated at £100 per month from the date the Council should have issued the final EHC plan in July 2023 until it was issued in January 2024.
33. We note the Council are making changes within the SEN team and reviewing its processes. I have not made any recommendations to change or update the Council’s procedures as we will monitor the impact of these changes through our complaints.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I find fault with the Council for delay with dealing with the Education, Health and Care needs assessment and have recommended a payment for the distress caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman