Summary: Ms X complained the Council delayed completing her son, F’s Education, Health and Care (EHC) needs assessment in line with statutory timescales. The Council was at fault. It failed to decide whether to issue F with an EHC Plan within the statutory timescale, caused by a delay in obtaining Educational Psychologist advice. This caused a further delay in the Council issuing F’s final EHC Plan and delayed Ms X’s right of appeal to the SEND tribunal. The Council agreed to make a payment to Ms X to acknowledge the distress, frustration and uncertainty caused to her.

The complaint

1. Ms X complained the Council failed to complete her son, F’s Education, Health and Care (EHC) needs assessment within statutory timescales due to a delay in obtaining Educational Psychologist advice. This in turn caused a delay in issuing F’s EHC Plan.
2. Ms X also complained the Council failed to put appropriate alternative provision in place between 2021 and 2022 when F was unable to attend school.
3. Ms X says the faults have caused her distress, frustration and uncertainty. It has also impacted on F’s mental health, education and his ability to cope at school.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. 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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What I have and have not investigated

8. I have not investigated Ms X’s complaint about a lack of alternative provision for F. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. Ms X had previously complained to the Council about the lack of alternative provision during 2021 and 2022 the Council provided a final response during 2022. Ms X however did not bring the matter to us at the time. This matter is therefore late as it was reasonable for Ms X to complain to us about it much earlier.
10. I cannot investigate F’s lack of alternative provision after it issued his final EHC Plan in November 2022. This is because Ms X appealed to the SEND tribunal. Paragraphs 18 and 19 below explain why we are restricted from doing so.

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How I considered this complaint

11. I spoke to Ms X about her complaint and considered information she provided.
12. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website.
13. Ms X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

14. 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.
15. 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 Code is based on the Children and Families Act 2014 and the SEND 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 a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

16. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
17. 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. The appeal can be against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.
18. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
19. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

What happened

20. Ms X has a son, F of secondary school age. F has special educational needs and started finding it difficult to attend school during 2021. In December 2021 Ms X asked the Council to carry out an Education, Health and Care (EHC) needs assessment for F which it agreed to do. In line with statutory timescales this means the Council should have decided whether to issue F with an EHC Plan by April 2022. That being the case the Council should have then issued F’s final EHC Plan by 11 May 2022.
21. After agreeing to carry out the EHC needs assessment Ms X said the Council wrote to her and explained that due to a shortage of Educational Psychologists (EP) to provide advice that F’s needs assessment would be delayed. The Council said an unprecedented number of EHC needs assessment requests had caused these delays along with a lack of EPs in its area to meet the demand.
22. The EP provided their advice on 1 September 2022. Shortly after this the Council agreed to issue F with an EHC Plan and a few days later it issued F’s draft EHC Plan. The Council issued F’s final EHC Plan on 10 November 2022, naming his current school.
23. Ms X appealed F’s EHC Plan to the SEND tribunal against both the content and F’s named placement.
24. Ms X complained to the Council in July 2023 about the delays in issuing F’s EHC Plan and the inadequate final Plan.
25. The Council issued a final complaint response in August 2023. It apologised for the delay in completing F’s EHC needs assessment and then the delay in issuing his final Plan. It did not respond to her complaint about the EHC Plan as that matter was with the SEND tribunal.
26. Ms X remained unhappy and complained to us. Ms X told us the SEND tribunal issued a consent order in October 2023 for changes to F’s EHC Plan including his named placement. If Ms X has any concerns with the Council’s actions following the consent order it is open for her to make a new complaint to the Council.
27. I am aware from other cases that the Council is already taking action to recruit EPs and reduce the EHC needs assessment backlog. This includes a national recruitment campaign and measures to ensure it retains EPs going forward.

My findings

28. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
29. Following Ms X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by mid-April 2022 and then subsequently issued the final Plan by mid-May 2022.
30. The EP report should have been available to the Council by mid-March 2022 in order for it to have met the April deadline. The EP report was not complete until September 2022 which was a delay of 24 weeks and fault. It caused a delay in the Council deciding whether to issue F with an EHC Plan. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases. This in turn had a knock-on effect which meant the Council did not issue the final EHC Plan until 10 November 2022. This was a delay of 26 weeks.
31. In total the Council took 46 weeks to assess F and issue his final EHC Plan instead of the 20 weeks statutory timescales.
32. I cannot say whether the delay that occurred before the EP gave their advice in September 2022 meant F lost out on special educational provision. This is because the EP advice reflected F’s needs as they were in September 2022, not necessarily as they would have been but for the delay.
33. However, after the EP gave their advice, the Council took too long to finalise F’s EHC Plan. With EP advice in hand, it should have issued the final Plan by mid-October 2022. It did not do so until mid-November which is a delay of four weeks which was fault. This fault delayed Ms X’s right of appeal to the SEND tribunal which she has now used.
34. The Council has explained what action it is taking to meet demands in its SEND service and to reduce the backlog in the EHC needs assessment process therefore I have not made any service improvement recommendations.

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Agreed action

35. Within one month of the final decision the Council agreed to take the following action:
1. Pay Ms X £550 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in deciding whether to issue F with an EHC Plan caused by the delay in obtaining advice from an Educational Psychologist.
2. Pay Ms X £100 to recognise the frustration caused by the delay in issuing F’s final EHC Plan after it had obtained EP advice.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman