Summary: Mrs X complained the Council delayed assessing her child, W, for an Education, Health and Care Plan. The Council was at fault. This caused Mrs X avoidable frustration and uncertainty and meant W missed out on one term of special educational provision. To remedy that injustice, the Council will apologise to Mrs X and pay her a total of £2075.

The complaint

1. Mrs X complained the Council delayed assessing her child, W, for an Education, Health and Care (EHC) Plan. Mrs X also complained the Council issued W’s EHC Plan without giving her extra time to comment on the draft Plan and express a preference for a school. She said the Council named W’s existing school in the Plan against her and W’s school’s wishes.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
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)
5. 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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How I considered this complaint

6. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
7. 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

Relevant law and guidance

Education, Health and Care (EHC) Plan

8. Children with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F sets out the child’s special educational provision and section I ‘names’ the school or type of school the child will attend.
9. 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:
• where a council receives a request for an EHC assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC Plan after an assessment, it should prepare a draft EHC Plan. The council should send the draft Plan to the child’s parent or the young person and give them at least 15 days to comment. It should also send the Plan to schools that may be able to accept the child or young person and meet their needs. This should take around six weeks; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC Plan.
10. There is a right of appeal to the SEND (Special Educational Needs and Disabilities) Tribunal about the educational provision and placement named in a child’s EHC Plan. This appeal right is only engaged once the final EHC Plan has been issued.

What happened

11. In mid-December 2022, Mrs X sent an EHC assessment request to the Council. Exactly six weeks later, the Council agreed to begin an EHC assessment.
12. The Council asked an educational psychologist (EP) to provide advice for the assessment, which was due by early March 2023. The Council received the EP advice in early October 2023. In mid-October, the Council told Mrs X it would tell her whether it would issue W an EHC Plan by mid-November at the latest.
13. In mid-February 2024 the Council decided to issue W an EHC Plan. It sent Mrs X a copy of its decision and a draft Plan the same day.
14. Mrs X was unhappy with the content of the plan and in late February, she requested more time to prepare comments and decide which school she wanted W to attend.
15. Two days later, the Council finalised W’s EHC Plan. It named W’s existing mainstream school and included the following special educational provision.
• 1:1 support for 30 minutes twice a week to develop W’s social skills;
• strategies for staff to use to reduce demand on W so they could access learning; and
• access to techniques to support W to manage their significant anxiety and their sensory needs.
16. Mrs X told us she intends to appeal the provision and setting named in the Plan.

Educational Psychologists

17. In response to a recent investigation, the Council told us it is being affected by the nationwide shortage of EPs. This is an issue for many councils as the number of EPs has declined and the number of EHC assessment requests has increased dramatically.
18. The Council told us that to manage the demand it:
• has built relationships with EP agencies, which meant it now had access to an extra 50 agency EP’s;
• will maintain those relationships until the end of the 2023/2024 financial year and will keep those arrangements under review to plan for the 2024/2025 financial year;
• prioritised the requests received according to wait time; and
• changed how its SEND department worked in February 2023 in advance of a more comprehensive review. It now has a team dedicated to carrying out EHC assessments and writing children and young people’s first EHC Plans.

My findings

Assessment delay

19. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Mrs X requested an assessment for W in mid-December 2022; the Council made its decision to assess in six weeks; this was in line with the timescale so was not fault.
20. Councils must seek EP advice as part of an EHC assessment. This should be received within six weeks of the council requesting it. The EP’s advice was almost thirty weeks (7.5 months) late. The Council is responsible for the commissioning and delivery of the EP advice and information. The delay in receiving the advice was due to a nationwide shortage of Eps. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons why the EP advice took longer than it should have, the delay was nonetheless fault.
21. After the Council received the EP advice, it should have issued W’s final EHC Plan within six weeks, by mid-November 2023. The Council took 21 weeks (over five months) to finalise W’s EHC Plan. This delay was fault.
22. In total, the Council took 63 weeks to assess W and issue their final EHC Plan, instead of the 20 weeks required by the Regulations and the Code. This was a delay of 43 weeks, or almost eleven months.
23. I am pleased to see the Council is making efforts to address the demands on its EHC assessment service, as set out in paragraph 18. Because the Council has already taken suitable steps to decrease the wait time for EP advice, reduce how long it takes to prepare first EHC Plans and improve the SEND department’s service, I have not made a further recommendation.

Assessment delay: injustice

24. The delay in the EHC assessment caused Miss X significant uncertainty and frustration while she awaited W’s final EHC Plan.
25. I cannot say whether the delay that occurred before the EP gave their advice in October 2023 meant W lost out on special educational provision. This is because EP advice forms a key source of information for the Council to decide what provision to include in a child’s EHC Plan. The EP advice reflected W’s needs as they were in October 2023, not necessarily as they would have been but for the delay. I therefore cannot know, even on the balance of probabilities what the EP advice would have been or what the Council would have taken from that advice for inclusion in W’s EHC plan.
26. However, after the EP gave their advice, the Council should have finalised W’s EHC Plan within around six weeks. It took fifteen weeks too long to finalise W’s EHC Plan. I am satisfied on balance, that the Plan the Council issued in February 2024 is not significantly different from what it would have been if the Council had issued the plan in mid-November 2023, as it should have. Therefore, accounting for school holidays, W missed out on one term of special educational provision. The Ombudsman typically recommends between £900 to £2400 per term in recognition of lost provision. Taking into account W’s age and the provision in their EHC Plan, I have recommended £900, in line with the Ombudsman’s Guidance on Remedies.

Finalising Plan

27. The Council must give parents at least 15 days to comment on draft EHC Plans. Mrs X asked the Council for more time to comment and name a preference for a school before the end of the minimum comment period. The Council did not respond and finalised W’s Plan two days later. This was not in line with the Regulations and was fault. It caused Mrs X undue further frustration.

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Agreed action

28. Within one month of the date of my final decision the Council will take the following action.
1. Apologise to Mrs X for the frustration and uncertainty she experienced due to the delay in completing W’s EHC assessment and its failure to give her more time to comment on W’s draft EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology.
2. Pay Mrs X £1075 in recognition of the frustration and uncertainty she felt due to the delay in assessing W for an EHC Plan. That equates to £100 per month of delay.
3. Pay Mrs X £100 for the frustration she felt when the Council finalised W’s EHC Plan without giving her more time to comment.
4. Pay Mrs X £900 to recognise the impact of the loss of special educational provision on W.
29. The Council will provide us with evidence it has complied with the above actions.

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Final decision

30. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman