Summary: Mr A complains about the time taken by the Council to make a decision about his Education, Health, and Care plan request for his daughter. He also complains about the Council’s delay in responding to his complaint. We find the Council at fault for both delays. The Council will make a payment to Mr A in recognition of the injustice caused.

The complaint

1. Mr A complained the Council delayed in issuing a decision about his request for an Education, Health, and Care (EHC) plan for his daughter, B. He also complained the Council did not respond to his complaint in a reasonable time.

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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. 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. 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

5. I considered the information provided by Mr A and the Council, and the relevant law, guidance and policies.
6. Mr A and the Council have had the opportunity to respond to a draft decision before this final decision is made.

Law, guidance and policy

7. 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.

8. A Council must assess if they think the child may need special educational provision. The Council should decide whether to issue an EHC plan within 16 weeks.

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What I found

What happened

9. Mr A contacted the Council in May 2023 to request an EHC needs assessment for his daughter, B. At the time, B was at a mainstream school which has a SEND provision within its grounds. She was on an assessment placement within that provision to support her needs.
10. As he had not received an update by late October 2023, Mr A complained to the Council.
11. B was assessed by an Educational Psychologist (EP) in December 2023.
12. The Council wrote to inform Mr A it had decided not to issue an EHC plan for B, in January 2024. The Council explained Mr A had a right to appeal this decision if he disagreed.
13. Mr A began the appeal process, but the matter was resolved before the matter went before the Tribunal.
14. The Council issued a draft EHC plan for B in May 2024.

Analysis and findings

15. A Council must make a decision whether to issue an EHC plan within 16 weeks of the request. In this case, the Council took almost 34 weeks. This is a delay of four months.
16. During this time, B was in full time education, although it was felt she would benefit from adjustments as she was struggling with anxiety which impacted her ability to form friendships amongst other issues. Her attendance rate at the time of the request was almost 95%.
17. The Council has acknowledged the delay and apologised. It has explained there was a national and local shortage of educational psychologists. However, in its stage one complaint response, the Council said it had not requested the EP report until November 2023. This is a delay caused by the Council rather than the shortage of EPs and amounts to a fault.
18. The Council made a decision not to issue an EHC plan once it had obtained all of the information needed to do so. It took the view that B’s needs had been understood and the provision which was already in place in B’s school was well matched to those needs. This was a decision the Council is entitled to make.
19. Mr A appealed the Council’s decision to the SEND Tribunal. The Council decided it would issue an EHC plan during that process. This is also a decision the Council is entitled to make.
20. The fault is therefore limited to the delay in making a decision to issue an EHC plan, and the injustice is four months of avoidable uncertainty for Mr A. This should be recognised by way of a remedy.
21. I have not recommended a service improvement in regard to the EP shortage because the Council has confirmed it has a plan to address delays caused by the EP shortage. However, as the delay identified appears to have been caused by the Council’s actions, I have recommended a service improvement in that regard.

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Agreed action

22. Within one month of the decision, the Council will:

• Make a payment of £400 to Mr A in recognition of four months’ delay caused by the Council.

23. Within three months of the decision, the Council will:

• Review what happened between the EHC needs assessment request and the EP report being requested, identify the cause of the delay and create a plan to avoid a repeat of this.

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

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Final decision

25. We found the Council is at fault and has caused an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman