Summary: Mrs X complained the Council delayed completing her child, 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 Mrs X’s right of appeal to the SEND tribunal. The Council agreed to make payments to Mrs X to acknowledge the distress, frustration and uncertainty caused to her.

The complaint

1. Mrs X complained the Council failed to complete her child, 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. Mrs X says the Council also failed to put in place alternative provision in a timely manner when F was unable to attend school.
3. Mrs X says the faults have caused her distress, frustration and uncertainty and delayed her right of appeal to the SEND tribunal.

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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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How I considered this complaint

8. I spoke to Mrs X about her complaint and considered information she provided.
9. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website.
10. Mrs 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

11. 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.
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 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.

13. 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.
14. 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.
15. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
16. Councils have some flexibility with regard to the time taken to set up alternative provision. However, they must make provision from the sixth day in exclusion cases, and they should do so in medical cases where it is clear the absence is for more than 15 school days.

What happened

17. Mrs X has a child, F who in 2023 was of primary school age and due to transition to secondary school in September 2024. F has special educational needs (SEN) and is being assessed for autism. During the 2022/23 academic year Mrs X started home educating F after they started struggling to attend school.
18. At the start of February 2023 Mrs X asked the Council to carry out an 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 the end of May 2023. That being the case the Council should have then issued F’s final EHC Plan by 22 June 2023.
19. Mrs X complained to the Council in May 2023. She complained it had failed to obtain timely advice as part of the EHC needs assessment from an EP, Occupational Therapist and appropriate mental health professionals. Mrs X said the needs assessment was being delayed as a result.
20. The Council wrote to Mrs X in June 2023 and apologised for the delay in completing F’s EHC needs assessment which it said was down to a shortage of EPs to complete the advice and exceptional demand for needs assessments. The Council said it would complete the needs assessment as soon as it received advice from the EP.
21. The Council responded to Mrs X’s complaint in July 2023 and followed up on its June correspondence. It apologised again for the delay in completing F’s EHC needs assessment. It said F was now allocated an EP who should provide their advice by mid-August after which the Council would make a decision about whether to issue a plan.
22. The EP provided their advice on 15 August 2023. Two weeks later the Council agreed to issue F with an EHC Plan. The Council issued F’s draft EHC Plan in October 2023 and then issued F’s final EHC Plan on 20 December 2023. It named a mainstream school as F’s placement in section I for the remainder of 2023/24 academic year. The Council named a special school from September 2024.
23. Mrs X decided to stop home educating F and contacted the Council in August 2023 asking it to put alternative provision in place. Records show the Council arranged a package of alternative provision by the start of October 2022 which F is still receiving to date.
24. Mrs X remained unhappy and complained to us in November 2023 about the delays in completing F’s EHC needs assessment. Since complaining to us Mrs X says she has appealed F’s EHC Plan to the SEND tribunal, specifically the named placement.
25. 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

26. 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.
27. Following Mrs X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by the end of May 2023 and then subsequently issued the final Plan by 22 June 2023.
28. The EP report should have been available to the Council by the start of May 2023 in order for it to have met the April deadline. The EP report was not complete until mid-August which was a delay of 15 weeks and fault. It caused a delay in the Council deciding whether to issue F with an EHC Plan. This service failure was 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 20 December 2022. This was a delay of 26 weeks.
29. In total the Council took 46 weeks to assess F and issue a final EHC Plan instead of the 20 weeks statutory timescales.
30. I cannot say whether the delay that occurred before the EP gave their advice in August 2023 meant F lost out on special educational provision. This is because the EP advice reflected F’s needs as they were in August, not necessarily as they would have been but for the delay.
31. 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 the start of October 2023. It did not do so until the end of December which is a delay of nine weeks which was fault. This fault delayed Ms X’s right of appeal to the SEND tribunal which she has now used.
32. Through other cases, 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.
33. With regards to Mrs X’s complaint about a delay in putting alternative provision in place. Mrs X was home educating F prior to the 2023/24 academic year. Mrs X requested alternative provision for F in August 2023 and the Council put a package in place which began towards the start of October 2023. There is no evidence of any significant delay and further investigation into this would be unlikely to find fault.

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Agreed action

34. Within one month of the final decision the Council agreed to take the following action:
1. Pay Mrs X £375 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 Mrs X £250 to recognise the frustration caused by the delay in issuing F’s final EHC Plan after it had obtained EP advice.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. 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