Summary: Ms X complains about the Council delaying assessing her child, Y’s, needs and issuing her education, health and care plan. There is evidence the Council was at fault and this caused an injustice to Mrs X and to Y. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Mrs X complains the Council has delayed in assessing her child, Y’s, education, health and care needs and producing a final education, health and care Plan. Mrs X also complains the Council has delayed in responding to her complaints.

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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 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. I considered Mrs X’s complaints and the information she provided.
6. I considered the information I received from the Council in response to my enquiries.
7. Mrs X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making this final decision.

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What I found

Relevant law and guidance

Education, health and care needs assessments and plans

8. A child or young person with special educational needs (‘SEN’) 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.
9. 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 Special Educational Needs and Disability (‘SEND’) 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. 
• 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).  
10. 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. 

The Council’s complaints procedure

11. The Council has a two-stage complaints procedure. At Stage One the target timescale for response is up to ten working days from the date of receipt of the complaint, with a maximum of 20 working days.
12. At Stage Two, the complaint is usually reviewed by an independent officer who produces a report and recommendations for the Chief Executive. The Chief Executive sends a formal response within 20 working days.

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What happened

13. In January 2023, Mrs X requested an assessment of her child, Y’s, education, health and care needs. Y was in Year 12 of her education and on roll at a college.
14. The Council decided on 2 March 2023 not to undertake an assessment of Y because it was of the view that her needs could be met through support from resources available at college.
15. On 13 March 2023, Mrs X requested an assessment of Y’s needs again. The Council acknowledged it had received the request for assessment and advised Mrs X that it would need to be considered by the Council’s Panel and it would contact her when a decision had been made. The Council said that it had 6 weeks from receipt of the application to make a decision.
16. On 29 March 2023, the Council wrote to Mrs X to advise her the Panel had refused her request to undertake an assessment because there was no evidence of a learning difficulty. It was of the view that Y’s needs could be met through support already available at her college and therefore it was not necessary for special educational provision to be made through an EHC Plan.
17. Mrs X was unhappy with the decision and requested mediation. The Council told Mrs X that it would like to hold a local meeting before mediation. Mrs X appealed the Council’s decision to the SEND Tribunal. Formal mediation was never arranged by the Council.
18. Shortly before the Tribunal hearing, Mrs X sent an email to the Council to ask if it was still of the view that it would not assess Y. The Council responded the following day and advised Mrs X that due to additional information it had received, it had decided to proceed with an EHC needs assessment for Y.
19. In July 2023 the Council wrote to Mrs X to formally advise her it had now decided to carry out an EHC needs assessment for Y.
20. In October 2023, Mrs X complained to the Council that it had failed to meet the statutory timescale for issuing a final EHC Plan for Y. Mrs X said that Y had attempted mainstream college in Year 12 and again in Year 13 without success. She said they had exhausted all support available to her and an EHC Plan was vital in enabling Y to receive the correct support.
21. In its Stage 1 response to Mrs X’s complaints the Council said there was an increase in requests for EHC needs assessments and a national shortage of EPs. It said assessments for school age children were undertaken in chronological order from the date the request was made. It could not provide Mrs X with an accurate estimate of when Y and Z would be seen by an EP. The Council apologised for the delay and for the insufficient communication Mrs X received about the assessment process.
22. On 13 November 2023, the Council agreed to Mrs X’s request to escalate her complaint to Stage 2. The Council said it would respond within 20 working days, by 29 November 2023.
23. Mrs X brought her complaint to the Ombudsman in February 2024.
24. The EP Report was issued on 27 March 2024.
25. On 16 April 2024, the Council wrote to Mrs X to tell her that following the EHC needs assessment of Y, it had decided to write a draft EHC Plan. Mrs X was provided with a copy of the draft EHC Plan with the letter and given 15 days to send any amendments. On 1 May 2024 Mrs X sent her amendments to the Council.
26. The Council’s review of Mrs X’s complaint at Stage 2 was completed on 22 May 2024. The Council apologised for the delay. It also upheld Mrs X’s complaint that it had not met the statutory timescales for assessing Y’s needs and issuing a final EHC Plan. It offered £100 to recognise the impact of this on Mrs X and Y.
27. On 30 May 2024, the Council issued Y’s final EHC Plan. Mrs X was also provided with her appeal rights.

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Analysis

Decision to assess Y’s needs

28. The Council advised me that it reviewed the information held on Y’s file when it had received notice of the Tribunal appeal. There is evidence of the Council communicating with Mrs X about Y’s needs after she requested mediation and used her appeal rights. As a result of this in-depth consideration, the Council overturned its decision and decided to assess Y’s needs which led on to an EHC Plan being implemented. I cannot see any reason why the Council could not have considered Y’s needs in this way initially in March 2023 or January 2023.
29. The Council received the second needs assessment request on 13 March 2023 and after thoroughly considering the request, it decided an assessment was required. The decision was 12 weeks outside of the statutory timeframe. This is fault and it caused uncertainty and frustration for Ms X.

Y’s EHC Plan

30. The Council should have issued Y’s EHC Plan 20 weeks from when the assessment was requested. The Council issued Y’s final EHC Plan 10 months later than it should have. This is fault. This caused uncertainty, frustration and it delayed Mrs X’s appeal rights.
31. The Council says the delay in issuing the final EHC Plan was due to a shortage of EPs. The Ombudsman’s approach is that although we acknowledge there is a national shortage of EPs, a failure to complete the EHC needs assessment process within the statutory timescales is fault. Where we are satisfied the Council has plans in place to address the lack of EPs, we find fault due to “service failure”. Service failure can happen when an organisation fails to provide a service as it should have done due to circumstances beyond its control.
32. To address the shortage of EPs the Council has increased the substantive full-time equivalence of EPs, reviewed pay and conditions to attract EPs, undertaken recruitment campaigns including recruiting from overseas, increased numbers of trainee EPs and assistant EPs to supplement EPs work and reviewed service delivery to maximise efficiency of the current workforce. I am satisfied the Council is acting to address the impact of EP shortages on its services and for this reason I have not recommended any service improvements.
33. The Council issued the draft Plan within three weeks of receiving the EPs report. Therefore, I find the delay in securing the EP report was a service failure.

The Council’s response to Mrs X’s complaints

34. The Council sent its Stage 2 response to Mrs X over 7 months later than it should have. This significant delay is fault and it caused Mrs X frustration and time and trouble.

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Agreed action

35. To remedy the injustice caused by the faults identified above, the Council has agreed that within four weeks of this final decision it will:
• Pay Mrs X £1000 for the ten-month delay in issuing Y’s final EHC Plan;
• Pay Mrs X £250 for the uncertainty, avoidable distress caused by the delay in issuing its decision to assess Y’s needs; and
• Pay Mrs X £300 for time and trouble due to the significant delay in responding to her Stage 2 complaint.
36. The Council will provide us with evidence it has complied with the above actions.

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Final decision

37. The Council is at fault for failing to issue a decision on assessing Y’s needs and issuing her final EHC Plan within statutory timeframes. It has agreed to remedy the injustice caused by the fault. Therefore I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman