Summary: Mrs X complained of the Council’s delay in completing the assessment for and issuing her son’s Education, Health and Care Plan. We found fault because there was a significant delay in issuing the plan. This caused avoidable distress and uncertainty for Mrs X. To remedy the injustice caused, the Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complains the Council took too long to complete the Education, Health and Care (EHC) Plan needs assessment for her son, Y, which meant the final plan was then issued outside of statutory timescales.
2. Mrs X says this has caused her distress and frustration.

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The Ombudsman’s role and powers

3. 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)
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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What I have investigated

6. My investigation ends in June 2024 which is when the Council issued Y’s first Final EHC Plan.

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How I considered this complaint

7. I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

9. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.

Timescales and process for EHC Plan assessment

10. Statutory guidance ‘Special educational needs and disability (SEND) 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 SEND 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; and
• 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).

What happened

11. I have set out below a summary of the key events. This is not meant to show everything that happened.
12. Mrs X has a young son, Y, who attends primary school.
13. At the end of July 2023, Mrs X asked the Council to carry out an EHC needs assessment (the assessment) on Y. The assessment would help to decide if he needed an EHC Plan.
14. At the beginning of September 2023, the Council agreed to carry out the assessment and called Mrs X to advise.
15. On the same day, as part of the assessment, the Council requested advice from its in-house educational psychologist (EP) service.
16. Mrs X made complaints to the Council about the delays in the process. The Council finalised its complaints process and sent her its stage two complaint response in mid-February 2024. The Council acknowledged that she was unhappy with its stage one complaint response. It also acknowledged the delay in completing the assessment for Y which it said was due to a shortage of EPs. It apologised for the delays and said it was working to tackle the issues.
17. The Council finished its response by signposting Mrs X to the Ombudsman .
18. The EP assessment was carried out towards the end of May 2024.
19. The EP report was completed in mid-June 2024.
20. The Council issued a draft EHC Plan on the same day and then issued Y’s first Final EHC Plan at the end of June 2024.

Analysis

EHC Plan process

21. Statutory timescales state that from beginning to end, the EHC needs assessment process and any EHC Plan resulting from this should take no more than 20 weeks to complete.
22. The 20-week deadline for Y’s EHC plan to be issued was mid-December 2023. Y’s first Final EHC Plan was issued six and a half months late, at the end of June 2024.
23. In response to my enquiries, the Council repeated the difficulties it faced in securing EPs to complete reports needed for EHC needs assessments. The Council explained the steps it had taken to reduce the delays in getting EP advice. It has increased the number of EP posts within the Council, has been using locum EPs and undertaking virtual assessments where appropriate.
24. Whilst I acknowledge the difficulties in securing an EP, this still led to a significantly delayed first Final EHC Plan. In the circumstances of this complaint, not issuing the plan within statutory timescales is sufficient for me to make a finding of service failure. This will have led to avoidable delay, uncertainty and distress for Mrs X.
25. The Ombudsman recognises the national shortage of EPs available to complete reports for EHC needs assessments, leading to delays in the rest of the EHC Plan process. Our current approach is to remedy the injustice caused by this by recommending a symbolic payment of £100 per month from the date the EHC Plan should have been issued to when it was. On this basis, I have made a recommendation below to remedy the injustice caused to Mrs X.

The Council’s suggested remedy

26. In response to my enquiries, the Council suggested a symbolic remedy totalling £850. £700 of this was to take account of the delay caused by the EP issues. £150 was to recognise the distress, time and trouble Mrs X experienced.
27. I am satisfied, that in the circumstances of this complaint, this is an appropriate remedy. I have referenced this below in my recommendations.

Service improvements

28. In response to the Area Special Educational Needs and Disabilities (SEND) inspection carried out in November 2023 by Ofsted and the Care Quality Commission, in February 2024 the Council prepared its SEND Local Area Partnership Priority Action Plan. One of the priority actions identified is improving the timeliness and quality of the statutory EHC Plan processes. From May 2024 the SEND Improvement Board has been using performance information to assess and challenge progress and deliver improved outcomes for children and young people with SEND.
29. With this in mind, I do not intend to make any further recommendations in relation to the delays linked to the EHC needs assessment process or that the Council should try and secure additional EP capacity.

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Agreed action

30. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Ms X for the injustice caused by the delay in issuing Y’s first Final EHC Plan; and
• as per its suggestion, make a symbolic payment to Mrs X of £850 to reflect the distress and uncertainty caused by the delay in issuing the eventual plan and to recognise the delay in the EHC plan process itself.
31. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
32. Payments made are in line with the Ombudsman’s guidance on remedies.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman