Summary: The Council delayed carrying out an Education, Health, and Care needs assessment and issuing an EHC plan for Mr X’s child, Y which caused distress to the family. We are satisfied with the service improvements already being carried out by the Council to resolve this issue. The Council will apologise and make a payment to recognise the personal injustice to Mr X and Y.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council:

• failed to complete an Education, Health and Care needs assessment and issue an EHC plan within the statutory time limits; and
• failed to include advice from other services in the EHC plan.

2. Mr X says this has caused Y to be further behind in his education and caused him and his family significant distress and financial hardship. Mr X also says he has spent time appealing the EHC plan with caused further delay and stress to the Y and the family.

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The Ombudsman’s role and powers

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. 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)
5. 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)
6. 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)
7. The courts have established that if someone has appealed to the SEND 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)
8. 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

9. I have investigated Mr X’s complaint the Council failed to complete the EHC needs assessment and issue an EHC plan within the statutory time limits.
10. I have not investigated Mr X’s complaint that the Council failed to include advice from other services in the EHC plan. This is because Mr X has a right of appeal against the content of the EHC plan to the SEND tribunal. The law says we cannot normally investigate a complaint when someone has a right of appeal. It would have been reasonable for Mr X to use this appeal right.
11. In addition to this, I have not investigated events that happened before January 2023. This is because it would have been reasonable for Mr X to have complained about these matters to the Council and Ombudsman before January 2024 and I have not seen a good reason to use my discretion to investigate. Therefore, I am unable to make any substantive findings on anything that happened before January 2023.

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How I considered this complaint

12. I have considered the information Mr X provided. I also considered the information the Council provided in response to enquiries.
13. Mr X and the Council had the opportunity to comment on my draft decision. considered these comments before making a final decision.

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What I found

Law and guidance

EHC Plan 

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. 

Timeframes and process for EHC assessment 

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 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. 
• 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);  

SEND Tribunal

16. 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.

Background information

17. Y’s school sent an EHC plan request directly to the Council. The Council confirmed it received this on 16 February 2022. The Council said it would tell Mr X if it agreed to complete an EHC needs assessment by 30 March.
18. On 6 May, the Council told Mr X that it agreed to carry out an EHC needs assessment. It stated it would send out requests for advice from services who would have six weeks to respond.
19. In September, a council officer contacted Y’s parents to say the Council was still waiting for reports from services. It apologised for the delay.
20. Y’s parents continued to ask the Council for an update.
21. The Council issued a draft EHC plan on 16 November.
22. The Council issued the final EHC plan on 22 February 2023 and this was sent to the family the following week.
23. At the end of November, Mr X complained to the Council. He said the Council failed to follow timeframes throughout the EHC needs assessment process. Mr X also complained the Council failed to issue the EHC plan within statutory timeframes. He said this delayed Mr X’s right of appeal and caused Y and his family continuing stress. Mr X says this delayed Y receiving the support that he needed in school.
24. The Council responded early December. It acknowledged and apologised for the delay in issuing Y’s EHC plan. The Council said it had been a significantly challenging year for the EHC team as it had received twice as many requests for EHC needs assessments than ever before. It also said it had a significant turnover of staff, including managers.
25. The Council stated that it had responded to the increase in demand and turnover of staff by increasing the size of the team and it had recruited four extra agency staff.
26. Mr X was unhappy with the Council’s response and escalated this to a stage two complaint.
27. The Council responded to this complaint early January 2024. It upheld the complaint, apologised for its failings and offered a financial remedy.
28. Mr X declined the financial remedy the Council offered and complained to the Ombudsman.

Analysis

29. The Code sets out the statutory timescales for completing an EHC needs assessment and issuing an EHC plan. We expect councils to follow these timeframes. We are likely to find fault where there are significant breaches of those timeframes.
30. The Council should have issued the final EHC plan by 6 July 2022, however it did not issue this until 22 February 2023. This was over seven months past the statutory deadline. The Council have already accepted fault and apologised for this.
31. This has caused frustration, distress and uncertainty to Mr X and Y.
32. The Council said it failed to meet these deadlines due to an increase in requests for EHC needs assessments and staff shortages. I welcome the service improvements the Council said it has made to manage the EHC process.
33. The Council also offered Mr X £250 in recognition of the unacceptable delay and a further £250 for the distress and inconvenience caused to Mr X and his family.
34. At this stage, I find the Council’s actions here provide an appropriate remedy for the injustice caused to Mr X and his family. This is also in line with our published Guidance on Remedies.

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Agreed action

35. To remedy the injustice identified above the Council will, within one month:

• provide a further apology to Mr X and the family for the distress caused to them by the delay in issuing the EHC plan;
• pay Mr X £250 in recognition of the unacceptable delay in issuing the EHC plan; and
• pay Mr X £250 for the distress caused to Mr X and his family by the delay in issuing the EHC plan.

36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman