Summary: Mrs X complained the Council has delayed in carrying out an Education, Health, and Care needs assessment and in issuing a EHC Plan for her son. The Council’s delay in the EHC Plan process and in issuing a final Plan are fault. This fault has caused Mrs X an injustice which the Council has now remedied.

The complaint

1. The complainant, Mrs X complained the Council has delayed in carrying out an Education, Health, and Care needs assessment and in issuing a EHC Plan for her son.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• 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

6. 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 council can do this.
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: 
• 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.
• 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).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
8. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice. 

What happened here

9. Mrs X applied for an EHC needs assessment for her son Y in May 2023. The Council agreed to carry out this assessment in June 2023 and a case officer met with Mrs X virtually later that month. The case officer told Mrs X an EP would visit Y at school.
10. In October 2023 Mrs X complained an EP had still not visited Y. She noted the whole EHC plan process should take 20 weeks but it was now almost 23 weeks since her request. Mrs X said she had had no correspondence from the caseworker save for acknowledgments of reports she had provided.
11. The Council’s response acknowledged there had been a delay and that it had not met the 20-week timeframe. It explained the current demand for EHC Plan requests was high and demand was increasing. It was recruiting more staff and supporting existing staff to manage the timescale. The Council also said there was delay in the Educational Psychologist’s services. There was a national shortage of EP’s which impacted on the timeliness of assessments being completed. The Council said it was trying to source more EPs and had plans in place to try to address the issue.
12. The Council upheld Mrs X’s complaint and apologised for the delay. It confirmed it had contacted the EP team who would be in touch.
13. Mrs X was not satisfied by the Council’s response and in November 2023 asked for her complaint to be considered further. She complained that delays in supporting Y had meant she had to pay for private dyslexia, speech and language, and occupational therapy assessments.
14. In December 2023 the Council advised Mrs X it was unable to respond within the agreed timeframe and required an extension to 4 January 2024. As Mrs X had not received a response, she chased the Council. Mrs X spoke to a senior officer on 5 and 8 January 20244 and they wrote to Mrs X responding to her complaint on 10 January 2024.
15. The Council confirmed it had arranged for the EP report to be sent to Mrs X and that the case would be presented to the panel on 10 January 2024. The case officer would then contact Mrs X with the outcome and next steps.
16. The Council again upheld Mrs X’s complaint. It noted Mrs X’s concerns about the lack of contact and advised it was making improvements to its systems and processes, in particular to improve communication. The Council again apologised for the delays in the EHC Plan process.
17. As Mrs X remains dissatisfied with the Council’s response, she has asked the Ombudsman to investigate her complaint.
18. Matters have progressed since Mrs X complained to the Ombudsman. The Council issued a draft EHC Plan for Y on 7 February 2022. It asked Mrs X to provide her comments on, and any requests for changes to, the draft Plan within 15 days.
19. On 15 February 2024 the Council issued a Final EHC Plan. The Council acknowledged Mrs X had not had the 15 days since the draft Plan was issued to respond. It explained the Council was required to finalise the EHC Plan in line with the statutory deadline for Phase Transfers.
20. Mrs X considered the Council’s actions unacceptable and advised she had instructed a company to assist her in responding to the draft Plan and would submit her comments within the 15-day timeframe.
21. Mrs X has made a further complaint to the Council about the Council’s actions.
22. In response to my enquiries the Council says the main cause of delay in completing the EHC needs assessment was the late EP advice. It says this took six months longer than it should do and the Council did not receive it until early November 2023. The Council says that although the draft Plan was sent out within four weeks of receiving the EP advice, the rest of the process took too long. It says it received the school response on 20 December 2023 but did not issue a final report until 15 February 2024.
23. The Council says that the two processes of the phase transfer and the EHC needs assessment were happening at the same time. It says it should have issued a ‘type of plan’ or named the nursery setting earlier and then waited until 15 February 2024 to name the school setting. It apologises for the error.
24. The Council has developed a SEND strategy. It says a significant part of which is intended to address the increased demand for EHC needs assessments and delays in dealing with requests. The strategy includes commissioning a new EP service to clear the backlog of cases. In addition the Council says it is restructuring the service and increasing staffing, including an additional 11 position in the EHC team.
25. The Council says the delay in responding to Mrs X’s complaint was due to staffing shortages which are also being addressed. It apologises for any delays.

Analysis

26. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
27. Mrs X asked the Council for an EHC needs assessment on 9 May 2023. The Council had 20 weeks from this date to issue the EHCP, if it agreed to issue one. This meant the EHCP should have been issued by 26 September 2023. The Council issued a draft EHCP on 7 February 2024, and the final EHCP on 15 February 2024, a delay of approximately 20 weeks.
28. The Council told Mrs X this was because of a shortage of EPs and a backlog of EP assessments.
29. I accept the problems the Council has had in finding an EP, but it is the Council’s duty to ensure it has enough resources in place to meet the statutory timescales. The delay in the EHCP is fault as a result of service failure by the Council.
30. The Council was required to give Mrs X 15 days to comment on a draft EHC Plan and express a preference for an educational placement. In this instance the Council issue the final EHC plan only eight days after it sent Mrs X the draft plan. By not allowing the full period the Council has again failed to adhere to the statutory timescales.
31. The Council says it was required to issue the final Plan by 15 February 2024 as this is the statutory deadline for Phase Transfers. The SEND Code of Practice says councils must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases.
32. Y is due to move from primary to secondary school in September 2024. This is a key phase transfer, but the Council was not reviewing and amending an existing EHC plan. It was completing a needs assessment and issuing Y’s first EHC plan.
33. I am also concerned the accuracy of the Council response to my enquiries. The Council’s response to my enquiries says it received the EP report in early November 2023 and sent a draft plan out within four weeks. However the EP did not visit Y until December 2023, following Mrs X’s complaint, and the Council did not issue a draft plan until February 2024. The Council also suggests it should have issued a ‘type of plan’ or named the nursery setting before issuing a final plan on 15 February 2024. This is clearly incorrect as Y is currently at primary school.
34. We would expect the Council to ensure its records are correct and that it provides accurate information in response to our enquiries.
35. In addition I consider there to be fault in the Council’s complaint process. The Council’s complaints policy says it will respond to complaints as stage 2 of the process within 20 working days. In this instance the Council took almost eight weeks to respond to Mrs X’s complaint at stage 2. We expect councils to adhere to their published policies and delays of this nature are unacceptable. The Council has apologised for the delay. I consider this to be an appropriate remedy.
36. It is however disappointing that although, the Council upheld Mrs X’s complaint, it did not offer any remedy for the injustice caused by the delay in the EHC plan process. 
37. 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 recognise the avoidable distress caused. Our guidance on remedies says a moderate symbolic payment may be appropriate to remedy uncertainty caused by fault.
38. In response to my draft decision the Council has provided a copy of its response to Mrs X’s later complaint about the failure to allow the required 15 days to respond to the draft EHC Plan. In addressing this complaint the Council has also offered a remedy for the delays in the EHC Needs Assessment and the time and trouble and distress this caused.
39. This is an appropriate remedy which Mrs X accepted. I do not consider any further remedy for Mrs X and Y is necessary.
40. The Council has set out the steps that it is taking in the interim to increase EP capacity and reduce waiting times. I have not therefore made any service improvement recommendations.

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Final decision

41. The Council’s delay in the EHC Plan process and in issuing a final Plan are fault. This fault has caused Mrs X an injustice which the Council has now remedied.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman