Summary: Ms X complains about the Council’s delay in carrying out an Education Health and Care Needs Assessment on her child Y who was receiving a part time education causing distress, uncertainty, and loss of education. The Council has accepted it was at fault and we have found there was service failure by the Council due to the delay in carrying out the needs assessment. The Council has already apologised to Ms X for the delay. It has offered her a payment for her time and trouble and distress caused. It has also offered a payment for the loss of education to Y during a term in 2022. We consider the Council’s offer is a suitable remedy in this case and so have completed our investigation.

The complaint

1. I have called the complainant Ms X. She complains there were failings in the way the Council carried out an Education Health and Care (EHC) needs assessment on her child Y. In particular Ms X says the Council delayed carrying out the needs assessment and Y received a part time school timetable during this time. Ms X says she and Y have been caused distress and uncertainty during this time and Y has missed out on educational provision.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended). The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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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What I have and have not investigated

5. Ms X has said she is unhappy with the school and provision named in Y’s final EHC Plan as she feels it does not meet Y’s needs.
6. As Ms X has the right to appeal to the tribunal if she is unhappy with the content of Y’s EHC plan, which includes the educational setting named, I have not investigated this element of her complaint. Rather I have investigated whether the Council is at fault for delays in the process of considering Y’s EHC needs and producing an EHC plan.

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How I considered this complaint

7. I spoke to Ms X and considered the information she provided with her complaint. I made enquiries with the Council and considered its response along with relevant law and guidance.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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 this decision with Ofsted.

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What I found

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.

Timescales and process for EHC assessment

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 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.
• 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.
• 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 with 15 calendar days.

Advice and information for EHC needs assessments

12. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s educational 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.

What happened in this case

14. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
15. The Council received a request in early December 2022 from Y’s school on behalf of Ms X to carry out an EHC needs assessment on Y. Ms X said Y attended a mainstream school and was struggling with the provision. Ms X considered Y needed more specialist support. The Council acknowledged the request and sought further information from Y’s school. The Council said it would tell Ms X of its decision whether to proceed or not with the needs assessment within six weeks of her request.
16. In January 2023, within six weeks of Ms X’s request the Council agreed to carry out a needs assessment. It told Ms X it aimed to complete the assessment and reach a decision whether to issue a draft EHC Plan or not by 24 February 2023. The Council sought information from professionals for the EHC needs assessment.
17. The Council advised Ms X in August 2023 it had completed the EHC needs assessment and was issuing Y with a draft EHC Plan. The Council sent Ms X the draft EHC Plan for her comments and asked for her school preferences for Y. Ms X sent her comments and list of preferred schools which the Council consulted with for a placement for Y.
18. The Council issue the final EHC Plan on 11 November 2023 naming a mainstream provision for Y. The Council advised Ms X on her rights of appeal to the SEND Tribunal if she disagreed with the contents of EHC Plan and mainstream provision listed.

Ms X’s complaints to the Council

19. Ms X complained to the Council during the EHC needs assessment process March and June 2023 as she had not received the Council’s decision. In response to Ms X’s complaint in March 2023, she received an automated response to her contact from the Council. It said it was currently unable to respond to requests for process updates due to capacity.
20. Ms X complained to the Council again in June 2023 as she had not received a decision from the Council on the EHC needs assessment. Ms X said she had contacted the Council for updates but received no responses. Ms X complained Y was only receiving a part-time timetable at school because of their educational needs. Ms X considered Y should attend a specialist provision, so she needed to go and look at possible placements.
21. The Council responded to Ms X’s complaint, but Ms X remained unhappy with the reply and said she still not received any response from the Council about the needs assessment.

The Council’s response to Ms X’s complaints

22. In its responses the Council upheld Ms X’s complaints. It apologised for the delay and any undue stress or upset caused. It explained it received a high number of EHC needs assessments and there were unavoidable delays in completing them. The Council acknowledged this was not acceptable and was taking action to address it.
23. The Council explained there was also a national shortage of EP’s and high demands for services which added to the delay in completing Y’s EHC needs assessment. The Council said it was due to receive the EP’s advice on 24 February 2023, but it had not been received until 14 April 2023. There had been a further delay due to capacity issues within its needs assessment team as it could not act on the EP advice straight away. The Council said it aimed to deal with Y’s EHC needs assessment and draft EHC plan as a priority.
24. In response to my enquiries on the complaint the Council explained it has begun restructuring its SEND assessment service to be more streamlined and efficient by increasing officers in the team. It has commissioned additional EP resources in the short term and plans to increase the numbers of EPs in the long term to respond to the increase in demand for EHC needs assessments. Increasing the number of EP’s will also help support schools in general to meet the needs of those with SEND needs, both with and without EHC plans and look again to support those who can remain in a mainstream setting.
25. The Council responded to Ms X’s concerns about a lack of response to her contact. It explained that unfortunately while the SEND assessment service was prioritising reducing the EHC needs assessment backlog, it had been unable to respond to individual queries. So, it used automated responses as a temporary measure. The Council considered this provided a prompt response to enquiries and directed customers to its website for information and services. The Council told Ms X that once it issued a draft EHC Plan she could request a telephone call or meeting.
26. The Council explained that in October 2022 the Y’s school reported Y was experiencing difficulties when arriving at school, struggling to settle and follow routines. The school decided to introduce a part time timetable to change Y’s routine to a lunchtime start. The school stopped this in December 2022 as Y found it as challenging as a morning arrival and Y returned to a full-time timetable in December 2022.
27. The Council accepts its complaint response to Ms X in August 2023 was not fully and robustly investigated. The Council apologised for this and the further distress the prolonged delays issuing an EHC Plan caused to Ms X. It wished to offer Ms X a financial remedy to acknowledge the Council’s failings in this case and the injustice caused to Y by the delays in the needs assessment based on our Guidance on Remedies. This recommends a remedy payment of between £900 and £2400 a term for the loss of education. As Y was on a part time timetable between October 2022 to December 2022 the Council will offer Ms X £1200 being half of the higher recommended amount of £2400. It also wished to offer Ms X a £500 payment for her time and trouble and a £500 payment for the distress caused. So, the total remedy offered was £2,200.

My assessment

28. Under the code of practice, referred to in paragraph 11 the Council is required to tell parents whether it will complete a needs assessment within six weeks of receiving a request. Ms X requested a needs assessment in December 2022.The Council accepted Ms X’s request within the six weeks and said it would make a decision on the needs assessment by 24 February 2023. The Council did not issue the needs assessment decision and draft EHC Plan until August 2023. And it issued the final EHC Plan November 2023. The Council accepts this took 28 weeks longer than the 20-week statutory timescale as set out in the code of practice.
29. The Council explained the delay was mainly due to a lack of EP’s when carrying out EHC Plan needs assessments. There was then a lack of capacity within the assessment service. It is unfortunate that these reasons affected the Council’s ability to carry out its duties which I consider amount to service failure. The Council has apologised to Ms X for the delays caused by this service failure. We would normally make service improvement recommendations to the Council about its EHC Plan process. However, the Council has already taken such action and following plans drawn up to ensure it improves its service in this area. This is appropriate action for it to take.
30. But the delay in responding to Ms X about whether it would carry out a needs assessment has caused an injustice to Ms X and Y. This is through distress and uncertainty over the outcome of the assessment if agreed and whether the Council would issue an EHC Plan. Ms X has also been caused time and trouble in pursuing her complaint to the Council. The Council has accepted this impact on Ms X and Y. It is offering a £500 payment to Ms X for her time and trouble and £500 for any distress caused, totalling £1000. We would normally recommend a payment of £100 for each month of delay due to service failure. The Council’s offer of £1000 is around the amount we would recommend for the delays, so I consider it a suitable offer in this case.
31. The Council is also offering a payment of £1200 to Ms X for the part time timetable Y received during October 2022 to December 2022. I consider this is also a suitable offer in the circumstances of the case for the loss of education to Y.

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Agreed action

32. To remedy the injustice caused by the Council’s delay in carrying out the EHC reassessment the Council will within one month of my final decision:
• Make a payment of £1000 to Ms X. This is in recognition of her time and trouble and the distress caused by the delay in the EHC needs assessment.
• Make a payment of £1200 to Ms X for the loss of education between October 2022 and December 2022.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation. I have found evidence of service failure by the Council and consider the payments proposed by the Council to be suitable remedies for the injustice caused in this case.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman