Summary: Mrs F complained that the Council delayed issuing her son’s EHC plan, causing him to miss out on provision and causing her significant distress. We found fault. The Council has agreed to apologise and make a payment to remedy the injustice.

The complaint

1. Mrs F complained on behalf of her son, Mr J, that the Council delayed issuing an EHC plan. This has caused him to miss out on education and caused her significant distress.

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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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
5. 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.
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
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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How I considered this complaint

9. I spoke to Mrs F about her complaint and considered the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• The Special Educational Needs and Disability Regulations 2014 (“the SEND Regulations”)
10. Mrs F 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

Special educational needs

11. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
13. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

EHC needs assessments

14. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request. Parents can challenge a refusal to assess by appealing to the SEND Tribunal.
15. In order to complete an EHC needs assessment the Council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests. (SEND Regulations 2014, regulation 6(1))
16. 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.
17. If the council decides 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).

Social care provision in EHC plans

18. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
19. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child or young person’s social care needs. Where a child or young person is not previously known to social care this will require a new assessment to identify if there are social care needs which need to be included in the EHC plan.
20. Where young people aged 18 or over continue to have EHC plans, and are receiving care and support, this will be provided under the Care Act 2014. The statutory adult care and support plan should form the ‘care’ element of the young person’s EHC plan. (SEND Code of Practice, paragraph 8.69)
21. If a parent disagrees with the social care support set out in the EHC plan they can make a complaint to the council. Alternatively, if they are going to appeal to the Tribunal about other parts of the EHC plan, they can ask the Tribunal to consider the social care elements.

What happened

22. I have summarised the key events. This is not meant to be a detailed chronology of everything that happened.
23. Mr J has severe learning difficulties, autism and epilepsy. He moved to the Council’s area in April 2022. He was not attending school. The Council initially refused to assess Mr J’s EHC needs but after a second request by Mrs F on 13 August, it agreed to assess on 21 September.
24. This meant it had to decide whether or not to issue an EHC plan by 3 December (16 weeks from Mrs F’s request). And, if it decided to do so, the final EHC plan should have been issued by 31 December 2022.
25. There is a case record that the SEN team discussed Mr J’s social care needs with the disabled children’s team in October. I have not seen evidence of a child in need plan at this stage.
26. The Council sought advice from health services, speech and language therapy (SALT), and occupational therapy (OT). This advice was received by 15 December. It also sought advice from educational psychology (EP). This was not received until 3 February 2023.
27. Mrs F complained on 16 December 2022 that she had not yet received a draft or final EHC plan.
28. In January 2023 the Council started to provide Mr J with 3 hours a week educational support under its personalised pathways service.
29. After the Council had received the EP’s report it replied to Mrs F’s complaint on 9 February. It apologised for the delay in issuing an EHC plan. It said it was still awaiting advice from social care but would issue a decision soon.
30. The social care advice was received on 15 February, though I have not seen this. The next day the Council wrote to Mrs F to say it had decided to issue an EHC plan.
31. At this point, the Council had all the advice it needed to issue a draft Plan but it was not issued until 5 September.
32. In response to my enquiries the Council said an officer had left and Mr J’s case was not reallocated until June 2023. It also said it was awaiting the outcome of an adult social care assessment and that it could not consult with education providers until it knew where Mr J would be living, as his care assessment had recommended a residential placement.
33. Mr J was referred to the adult social care team in June 2023 as he was to turn 18 in November. A child in need meeting in July 2023 noted that Mr J’s children’s social care assessment had been completed and a residential placement was being sought. His July 2023 child in need plan says Mr J was receiving 8 hours per week social care support and he had been referred for a care and support assessment.
34. The Council issued a draft EHC plan on 5 September. It says it was by then seeking a supported living placement for Mr J, although the adult care and support assessment and plan was not finalised until November 2023.
35. Mr J moved into a supported living placement in another council’s area in mid-November. At this point, the other local authority became responsible for delivering any EHC plan. As one had not yet been issued, the other authority had a right to decide to re-assess.
36. The Council emailed Mrs F on 7 December to say it was not going to finalise the EHC plan as it was no longer appropriate due to Mr J’s needs.
37. Mrs F made a further complaint to the Council and came to the Ombudsman,
38. The final EHC plan was issued on 22 January 2024. It named a type of educational setting. It also said Mr J required six hours of SALT provision per week and 19 hours of OT provision each year.
39. The Council replied to Mrs F’s second complaint. It said it was dealing with high volumes of EHC needs assessments and had been awaiting confirmation of Mr J’s social placement before it could consult with education settings.

My findings

40. 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. Following the Council’s decision to assess, it had to progress the assessment so it could issue Mr J’s final EHC plan within 20 weeks of the request, i.e. by 31 December 2022. The final Plan was not issued until 22 January 2024 and the Council has accepted this is fault.
41. EHC plans must include advice from an EP, so the Council could not issue it until after the EP report was received in February 2023. I acknowledge there is currently a national shortage of educational psychologists which is causing delays in providing EP advice for EHC assessments. But the law nonetheless says that plans must be issued within 20 weeks. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. So my view is that it was service failure not to issue the final plan by 31 December 2022.
42. The Ombudsman has made five recommendations to the Council in the last year about reminding staff of the statutory EHC plan timescales and reviewing its processes to identify and action delays. So it is disappointing that the legal deadlines were not met in this case. In response to my draft decision, the Council sent its SEND strategic priorities which say the Council wants to “continually improve its support and practice” and “ensure robust multi-agency decision making processes are embedded”. The Council is accountable to Ofsted/CQC for meeting these objectives, so I expect it to have a plan to improve.
43. I am concerned about some of the Council’s reasons for the delay in issuing a draft or final EHC plan.
44. It says it was awaiting the outcome of Mr J’s care and support assessment. But an EHC plan can be issued without this and, in any case, Mr J should have already had a child in need plan by autumn 2022 which should have formed part of the EHC plan.
45. The Council also said it had to wait until it knew where Mr J would be living before it could consult with education providers. But councils consult with education providers after draft EHC plans are issued, as draft plans must not name a setting in Section I, and councils are able to name a type of setting in a final plan. The Council therefore did not have to wait before it issued the plan. And in any case, the law says a final plan must be issued within 20 weeks.
46. The failure to issue the EHC plan on time meant Mr J missed out on the OT and SALT provision set out in the Plan for over three terms (January 2023 to January 2024) which is an injustice.
47. The Council had put some educational provision in place in January 2023. There is uncertainty about whether more could have been provided if the EHC plan had been issued, as it is unclear how much education Mr J could have accessed. But this uncertainty about whether he could have received more education sooner, is an injustice.
48. The delay has also caused Mrs F distress and delayed her appeal rights.
49. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. For loss of SEN provision such as SALT and OT, and for distress, our guidance recommends moderate, symbolic payments may be appropriate.

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Agreed action

50. Within a month of my final decision, the Council has agreed to apologise to Mrs F and pay her:
• £1,500 to remedy the loss of therapies for three terms.
• £500 to remedy the uncertainty about whether more education could have been provided sooner to Mr J.
• £300 to remedy the distress and loss of appeal rights caused to her.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman