Summary: Mrs X complained the Council has delayed in carrying out an Education, Health, and Care (EHC) needs assessment and in issuing a EHC Plan for her daughter. The delay in completing Y’s EHC needs assessment and in issuing a final EHC Plan is fault. This fault has caused Mrs X an injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X complained the Council has delayed in carrying out an Education, Health, and Care needs assessment and in issuing a EHC Plan for her daughter.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X; and
• 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 Plans

6. 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 council can do this.
7. 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.

What happened here

8. Mrs X’s daughter, Y attends a mainstream school. On 19 May 2023 Y’s school requested an EHC needs assessment. To comply with the statutory timeframe the Council should have confirmed by 30 June whether it agreed to the assessment. Mrs X chased the Council and made a complaint on 1 July 2023 as she had not received a response.
9. The Council told Mrs X it had not received the request for a needs assessment so she sent a further copy.
10. The Council responded to Mrs X’s complaint on 24 July 2023 and told Mrs X it currently had a very high number of EHC needs assessment requests which was leading to an unavoidable delay in their completion. It said the Council had started the process on 18 July 2023 when the papers were received and would now action the request.
11. Then on 2 August 2023 the Council confirmed it would carry out a needs assessment. It said it aimed to complete the assessment and decide whether or not to issue a Plan by 9 October 2023.
12. Mrs X was unhappy the Council’s complaint response did not acknowledge the request for an EHC needs assessment was initially made on 19 May 2023. She asked for her complaint to be considered further and for the rest of the EHC needs assessment process to be completed in line with the statutory timescales.
13. She made a further complaint to the Council in early November 2023 as the Council had not confirmed whether it intended to issue an EHC Plan. Mrs X again noted the Council had not complied with the statutory timeframe.
14. The Council’s response to Mrs X’s complaint says the needs assessment started on 2 August 2023 and the Council sought advice from professionals, including the education psychologist (EP), that day. This meant the advice was due by 13 September 2023. However due to the high number of EHC needs assessments being undertaken and a shortage of EPs, the Council did not receive the advice until 23 October 2023.
15. It confirmed it would now make a decision on whether to issue an EHC Plan and would let Mrs X know by the end of November 2023.
16. In addition the Council now confirmed it had received the original assessment request on 19 May 2023. Mrs X should therefore have received a decision on whether to carry out an assessment by 30 June 2023 and whether to issue an EHC Plan by 8 September 2023. The Council apologised that the original request was not actioned when it was received.
17. The Council noted it had not fully and robustly investigated Mrs X’s complaint and its initial complaint response had not acknowledged it was at fault for the initial delay in processing the assessment request. It apologised for this oversight.
18. As Mrs X remained unhappy with the Council’s response and delay in the EHC Plan process she has asked the Ombudsman to investigate her complaint. Mrs X complained the Council’s errors meant Y was not being adequately supported in school, or receiving the provisions she requires. The impact of this on Y was having a knock-on effect on the rest of the family. She wanted the EHC Plan completed as soon as possible and for the Council to fund support for Y at school in the meantime.
19. The Council sent Mrs X a draft EHC Plan on 17 November 2023 and asked for her comments. Mrs X responded on 30 November 2023 and asked to discuss their views. She also confirmed her preferred schools for the Council to consult.
20. Following a telephone call on 4 December 2023 the Council confirmed it would now issue the final EHC Plan, naming Y’s current school. The Council confirmed it would also consult Mrs X’s preferred schools and let her know its decision once it had considered their response.
21. The Council issued the final Plan on 5 December 2023 and advised Mrs X of her right of appeal. Mrs X has appealed to the SEND Tribunal.
22. In response to my enquiries the Council says that at the time Mrs X requested an EHC needs assessment the service experienced an unprecedented rise in the number of assessment requests. This put a strain on its resources and there was a delay in carrying out EP assessments. This resulted in a delay in completing Y’s EHC needs assessment. It apologises for any inconvenience and frustration caused by this delay.
23. The Council says it is remodelling its SEND assessment service to address the sharp rise in assessment requests and ensure it is working to statutory timescales. It has invested a significant amount to increase the capacity of its EP service and its SEND assessment service and says this is already producing results. It is actively addressing the underlying issues within its assessment processes and is implementing new measures to prevent similar occurrences in the future.
24. To resolve Mrs X’s complaint the Council has offered to pay Mrs X £500 to recognise the distress experienced and an additional £500 to recognise the unnecessary time and trouble she has been put to.

Analysis

25. There is no dispute there was a delay in completing Y’s EHC needs assessment and in issuing a final EHC plan. The Council has explained this delay was due to an increased demand for EHC needs assessments and the shortage of available EPs. It has also explained that it is already in the process of addressing these issues and is now seeing improvements. These efforts to resolve the issues in the EHC needs assessment process are to be welcomed.
26. However, the delay in this instance appears to be due to the Council misplacing and/or not actioning the initial request for an EHC needs assessment. The Council acknowledged receipt of the school’s request in May 2023 and should have decided whether to conduct an assessment within six weeks. The Council missed this deadline and only started the process in July 2023, after Mrs X had complained and provided a further copy of the request. This meant there was a period of over eight weeks where the Council took no action.
27. We expect councils to follow the statutory timescales set out in the law and the Code. The Council’s failure to meet the required timeframes here amounts to fault. The whole process from the request for an EHC needs assessment to when the final plan is issued should take no more than 20 weeks. In this case, the Council took over 28 weeks. Delays of this nature are clearly unacceptable.
28. The delay in the EHC needs assessment process caused Mrs X frustration and uncertainty and put her to unnecessary time and trouble. It also delayed her ability to exercise her right of appeal to the SEND Tribunal.
29. The Council has offered to make symbolic payments to recognise the injustice caused to Mrs X. These offers are in line with our guidance on remedies.

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Agreed action

30. The Council has agreed to:
• apologise to Mrs X for the frustration and uncertainty she experienced and the time and trouble she was put to due to the delay in completing Y’s EHC assessment. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
• pay Mrs X £500 to recognise the frustration and uncertainty she experienced and an additional £500 to recognise the unnecessary time and trouble she has been put to as a result of the Council’s delay.
31. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

32. The delay in completing Y’s EHC needs assessment and in issuing a final EHC Plan is fault. This fault has caused Mrs X an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman