Summary: Miss X complained the Council delayed completing an Education, Health and Care (EHC) needs assessment and issuing a final EHC Plan for her child, Y. Miss X said this meant Y lost out on education and support and the matter caused her distress. There were some faults by the Council with how it dealt with Y’s EHC Plan process. This caused injustice to Miss X. The Council will take action to remedy the injustice caused.

The complaint

1. Miss X complained the Council delayed completing an Education, Health and Care (EHC) Plan needs assessment and issuing a final EHC Plan for her child, Y.
2. Miss X said the delays led to loss of education and support for Y. She said the matter also affected Y’s behaviour and it caused her distress and anxiety.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the 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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share a copy of the final report with Ofsted.

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What I have and have not investigated

7. I have investigated matters from May 2023 to January 2024. This covers the period from when Miss X requested an Education, Health and Care (EHC) needs assessment for Y to when the Council issued Y’s final EHC Plan.

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How I considered this complaint

8. I have discussed the complaint with Miss X and considered the information she provided. I also considered the information the Council provided in response to my enquiries.
9. I sent Miss X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Law and Guidance

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
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.
12. 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. 
• 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.
• As part of the assessment, councils must gather advice from relevant professionals, this includes advice from an educational psychologist. Those consulted have a maximum of six weeks to provide the advice.
• 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).  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond within 15 calendar days.

13. Where there are exceptional circumstances, it may not be reasonable to expect councils and other partners to comply with the statutory timescales. The specific exemptions include where the educational setting is closed for at least four weeks, which may delay the submission of the information from the school or other institutions (this does not apply to the duty on partners to comply with a request under the EHC needs assessment process within six weeks). (9.42 of SEND Code of Practice 2015)
14. Parents do not have a right of appeal to the Tribunal until the Council makes a final EHC Plan (or decision not to issue a Plan) and issues a decision letter.

Key events

15. Y has some health conditions.
16. On 18 May 2023, Miss X requested an Education, Health and Care (EHC) needs assessment for Y.
17. On 27 June 2023, the Council sent its decision letter to Miss X. The Council said it agreed to assess Y’s needs and that it would seek advice from a range of relevant professionals to better understand them. The Council told Miss X it was experiencing a significant and unprecedented level of demand with EHC assessment processes. It said professionals were unable to complete their advice within the six weeks statutory timeframe so there might be a delay with Y’s assessment process.
18. In July 2023, the Council informed Miss X it had applied a four-week exemption pause to Y’s EHC needs assessment due to the school holidays.
19. In September 2023, the Council informed Miss X it was still in the process of gathering advice from different professionals.
20. Miss X complained to the Council about its delays in completing Y’s EHC needs assessment.
21. In the Council’s responses to Miss X’s complaint, it acknowledged there had been delays with Y’s EHC needs assessment which it said were due to:

• delays in receiving advice from professionals as a result of significant demands on its service and the educational psychologist (EP) service; and
• the four-week assessment pause it applied to Y’s case during the school holidays.

22. The Council confirmed Y’s assessment continued in late August 2023, but said it was still awaiting advice from some professionals including updated advice from Y’s school and advice from an EP. The Council said it was improving its EP service, so it can provide professional advice within the required statutory timescales.
23. Miss X was dissatisfied with the Council’s responses, its ongoing delays with Y’s EHC needs assessment and its delays with issuing their final EHC Plan. She made a complaint to the Ombudsman. Miss X said the Council’s delays meant Y was missing out on education and support and it was affecting their behaviour.
24. In late October 2023, the Council received advice from Y’s school. The Council said the delay was due to communication issues between it and Y’s school.
25. In late November 2023, the Council received the EP advice for Y.
26. In December 2023, the Council issued Y’s draft EHC Plan, and it invited parental comments.
27. On 11 January 2024, the Council issued Y’s final EHC Plan.

Analysis

28. The Council made its decision to assess Y within six weeks from Miss X’s request, so the time it took to do this was not fault.
29. I acknowledge the Council’s reasoning for applying a four-week pause during the school holidays. However, this does not apply to the duty on other professionals to comply with the request for advice and information within six weeks. There is evidence of extra delay in the Council receiving advice from Y’s school in late October 2023 because of communication issues between the Council and the school. It took the Council a total of 17 weeks to assess Y’s needs. This was fault.
30. I also recognise the high demand on EP service and the delays the Council experienced in getting EP advice in Y’s case. But there was no evidence to show the Council made sufficient efforts to find alternative EP advice during the delay period in this case. This was not in line with statutory guidance and therefore amounts to fault.
31. The whole process from when an assessment is requested until the final EHC Plan is issued, must take no more than 20 weeks. The Council issued Y’s final EHC Plan on 11 January 2024 which means the Council took a total of 34 weeks. Allowing for the four‑week exemption pause, the avoidable delay in issuing Y’s final EHC Plan was approximately 10 weeks. This was fault.
32. The Council’s delays caused Miss X distress and uncertainty and delayed her right of appeal to the Tribunal if she disagreed with the contents of the Plan.
33. I note Miss X said Y lost out on education and support due to the Council’s delays in assessing and issuing Y’s final EHC Plan. However, I cannot say the Council would have reached the same conclusions had it completed Y’s needs assessment sooner. This is because the assessment process takes account of the latest evidence relating to a child or young person’s present circumstances, rather than looking at the child or young person’s situation at the point when the EHC Plan should originally have been made.
34. Similarly, if Y had been disadvantaged by the Council’s delay in obtaining the statutory EP advice, we would expect the provisions in Y’s final EHC Plan to reflect their needs and take into account any impact of the delays. If Miss X disagrees with the provision set out in the final Plan, she can exercise her right of appeal to the Tribunal.
35. In response to our draft decision statement, the Council provided additional information and evidence to show:
1. the service improvements it has put in place to improve the capacity of its educational psychologist service and
2. it has an existing action plan to demonstrate how it will meet the statutory timescales for completing EHC needs assessments and issuing final EHC Plans.
36. The Ombudsman acknowledges the Council is taking action to improve its service and welcomes this. But we may make further service improvement recommendations if we do not find sufficient progress is being made if we receive further complaints against the Council on the same matters.

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Agreed action

37. To remedy the injustice caused by the faults identified, the Council has agreed to within one month of the final decision:

• apologise in writing to Miss X to acknowledge the injustice caused to her by the Council’s faults as identified above. The apology should be in accordance with our guidance, Making an effective apology
• make Miss X a symbolic payment of £250 to acknowledge the distress and uncertainty caused to her by the Council’s delays and for delaying her right of appeal to the Tribunal. This covers the 10 weeks’ delay at £100 per month.

38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I find evidence of fault by the Council leading to injustice. The Council will take action 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