Summary: Mrs B says the Council delayed completing an education, health and care needs assessment and in issuing a final plan, failed to respond to her communications and delayed responding to her complaint. There is no evidence of failure to respond to communications. However, the Council delayed when completing the needs assessment and in issuing the final plan and delayed responding to the complaint. An apology, payment to Mrs B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Mrs B, complained the Council:
• delayed deciding whether to carry out an education, health and care needs assessment (EHC needs assessment);
• delayed issuing an education, health and care plan (EHC Plan);
• failed to respond to her various communications; and
• delayed responding to her complaint.
2. Mrs B says the Council’s actions cost her daughter a place at a suitable specialist school, meant her daughter missed out on provision and caused her significant stress.

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The Ombudsman’s role and powers

3. 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)
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 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

6. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mrs B and the organisation 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

What should have happened

8. A child or young person with special educational needs may have an 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.
9. The special educational needs code of practice (code of practice) says following a request for an EHC needs assessment, the local authority must determine whether an EHC needs assessment is necessary. The local authority must make a decision and communicate the decision to the child’s parent or to the young person within 6 weeks of receiving the request.
10. The code of practice says the whole process of EHC needs assessment and EHC Plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC Plan is issued, must take no more than 20 weeks (subject to exemptions).
11. The Council’s complaints procedure says it will acknowledge complaints within five working days and provide a full response within 15 working days. The complaints procedure says that may sometimes be extended up to 20 working days. If it will take longer the Council will contact the person that has complained to explain why and to keep them informed.

What happened

12. Mrs B’s daughter is autistic and has special educational needs. Mrs B says the nursery attended by her daughter contacted the Council on 8 March 2023 to request an EHC needs assessment. The Council says it received the request for an EHC needs assessment on 16 May 2023.
13. On 11 August the Council wrote to Mrs B to acknowledge receipt of the request for an EHC needs assessment. The Council then wrote Mrs B on 23 August to say it had agreed to carry out an EHC needs assessment.
14. Mrs B chased the Council on 19 September. The Council told Mrs B it had allocated an educational psychologist who would provide the advice by 13 October.
15. Mrs B put in a complaint about the delays on 26 October. The Council acknowledged receipt of that complaint on 30 October. The Council responded to the complaint on 5 February 2024.
16. The Council’s panel agreed to issue an EHC Plan on 15 November. The Council sent Mrs B a copy of a draft EHC Plan on 23 November and began consulting schools.
17. On 30 November the mainstream school consulted by the Council (school A) said it did not consider it was suitable for Mrs B’s daughter.
18. On 9 December the special school identified by Mrs B (school B) told the Council although it could meet Mrs B’s daughter’s needs it did not have any places available.
19. The Council issued a final EHC Plan on 14 December which named the nursery placement attended by Mrs B’s daughter until September 2024. The Council named school A from September 2024. Mrs B put in an appeal.

Analysis

20. Mrs B says the Council delayed deciding whether to carry out an EHC needs assessment and then delayed issuing a final EHC Plan. The Council accepts there were delays in the process and points to the shortage of educational psychologists as a reason for that. The Council has apologised to Mrs B for the delays.
21. There is a dispute about the point at which the Council received the request for an EHC needs assessment. Mrs B says the nursery put in the request in March 2023. However, the Council says it received the request on 16 May 2023. As I do not have a copy of the original referral from the nursery or evidence the Council received it earlier, I cannot reach a safe conclusion about whether the Council received it in March 2023. I have therefore taken 16 May 2023 as the start date for the process.
22. As I say in paragraphs 9 and 10, the code of practice is clear about the timescales for completing an EHC needs assessment and in issuing a final EHC Plan. The EHC needs assessment should be completed within six weeks of the request and the final EHC Plan should then be issued within 14 weeks, making a total of 20 weeks to complete the process. Taking 16 May 2023 as the starting point this means the Council should have decided whether to carry out an EHC needs assessment by 27 June. However, the Council did not reach a decision about that until 23 August. That delay is fault.
23. The Council also delayed issuing the final EHC Plan. The Council did not issue the final EHC Plan until 14 December 2023. That is more than 11 weeks longer than the process should have taken based on 16 May as the starting point. That again is fault. The Council suggests the delays occurred due to the lack of educational psychologists. However, I am satisfied the delays occurred between May 2023 and August 2023, before the Council decided to complete the EHC needs assessment. Once it had decided to complete the EHC needs assessment the Council did not delay issuing the final EHC Plan. I am therefore satisfied the delays were not caused by the lack of educational psychologists. Rather, the evidence I have seen satisfies me the delays occurred because the Council failed to recognise the request for an EHC needs assessment in May 2023.
24. Mrs B says due to the Council’s delays her daughter missed out on a place at a specialist school. Mrs B says she knows this is the case because she is aware of the school admitting a child whose parents had requested an EHC needs assessment shortly before the nursery put in one for her daughter. I understand why Mrs B would take that view. However, I am satisfied once the Council issued a final EHC Plan it named a mainstream school in section I. I am therefore satisfied if the delays had not occurred and the Council had issued an EHC Plan earlier it would still have named a mainstream school. I therefore could not say Mrs B’s daughter missed out on a place at a specialist school due to the Council’s fault.
25. However, I am satisfied the delays caused Mrs B distress and meant she had to put in a complaint. The delays also meant a delay providing Mrs B with her right of appeal which then impacted on the date the appeal was concluded. I am also satisfied Mrs B has experienced some uncertainty about whether her daughter could have received some additional support earlier. To remedy that I recommended the Council apologise to Mrs B and pay her £300. The Council should also remind officers dealing with EHC needs assessments of the need to identify when a request is received and to ensure timescales are followed. The Council has agreed to my recommendations
26. Mrs B says the Council failed to respond to any of her emails chasing what was happening with the EHC needs assessment. Mrs B says the Council also failed to respond to chasing emails from the nursery. I do not have any documentary evidence showing communications between Mrs B and the Council, or the Council and the nursery, which were not responded to. I therefore have no grounds to criticise the Council here.
27. The Council accepts it delayed responding to Mrs B’s complaint. The Council received the complaint on 26 October 2023. However, the Council failed to respond to the complaint until 5 February 2024. That delay is fault. I recommend the Council apologise to Mrs B for that delay. I also recommended the Council remind officers dealing with complaints of the need to comply with the Council’s complaint timescales. Where that is not possible the Council should remind officers of the need to keep those who have complained up-to-date. The Council has agreed to my recommendation.

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Agreed action

28. Within one month of my decision the Council should:
• apologise to Mrs B for the distress and uncertainty she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B £300;
• remind officers dealing with an EHC needs assessments of the need to ensure requests are logged and that the timescales set out in the code of practice are followed; and
• remind officers dealing with complaints of the need to ensure complaint responses are issued within the published timescales and, where delays occur, ensure those that have complained are kept up-to-date with what is happening.

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Final decision

29. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman