Summary: Mr X complained the Council failed to comply with the statutory timeframe for issuing an Education, Health and Care Plan. He also complained the Council failed to communicate effectively throughout the process. Mr X said the delays will have a negative impact in his child’s educational outcomes. We have found fault with the Council for the delay in issuing a final Education, Health and Care Plan and delays in the complaints process. The Council has agreed to apologise, make a symbolic payment and complete service improvements.

The complaint

1. Mr X complained the Council failed to complete an Education, Health and Care (EHC) needs assessment and issue a final EHC Plan within the statutory timeframe following a tribunal order. He also complained the Council failed to communicate effectively throughout the process and did not offer the correct support. Mr X says the delays will impact his child, Z’s, transfer to secondary school and they will suffer mental distress, lack of wellbeing and negative educational outcomes as a result. Mr X would like the Council to:
• Apologise.
• Reimburse the cost of the private Educational Psychology report.
• Make a symbolic payment to acknowledge the injustice and time and trouble spent chasing the Council.
• Improve its EHC needs assessment procedures.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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 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.

Back to top

How I considered this complaint

6. I discussed the complaint with Mr X and considered the evidence he provided.
7. I made enquiries of the Council and considered its response.
8. Mr X and the Council had an opportunity to comment on the draft decision. I considered any comments I received before making a final decision.

Back to top

What I found

Relevant Law and Guidance

EHC Plans

9. Children with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F sets out the child’s special educational provision and section I ‘names’ the school or type of school the child will attend.
10. 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 a council receives a request for an EHC assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist, social care and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC Plan after an assessment, it should prepare a draft EHC Plan. The council should send the draft Plan to the child’s parent or the young person and give them at least 15 days to comment. It should also send the Plan to schools that may be able to accept the child or young person and meet their needs. This should take around six weeks; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC Plan.
11. There is a right of appeal to the SEND (Special Educational Needs and Disabilities) Tribunal about the educational provision and placement named in a child’s EHC Plan. This appeal right is only engaged once the final EHC Plan has been issued.
12. The SEND Code of Practice sets out that Council’s must provide all parents, children and young people with impartial information, advice and support in relation to SEN to enable them to take part effectively in the assessment and planning process. This information, advice and support should be provided through a dedicated and easily identifiable service.

Council complaints policy

13. The Council’s corporate complaints policy advises it aims to respond to stage one complaints within ten working days of receipt, with a maximum response time of twenty working days.
14. In accordance with the policy, Stage two complaints should also be responded to within twenty working days.

What Happened

EHC Assessment Process

15. Z’s school sent an EHC needs assessment request in March 2023. The Council issued a refusal to assess letter in May 2023 which falls within the six week statutory timeframe.
16. Mr X appealed to the First-Tier Tribunal against the Council’s decision. As part of the tribunal evidence, Mr X commissioned a private educational psychology assessment.
17. On receiving Mr X’s evidence, the Council agreed to carry out an assessment of Z’s education, health and care needs. In August 2023 the Council issued a letter agreeing to carry out the assessment. The deadline for the Council issuing a final EHC Plan for Z was 7 December 2023.
18. Due to the national shortage of educational psychologists, there was a delay in completing Z’s assessment.
19. In December 2023 the Council agreed to use the professional reports already available to complete Z’s draft EHC Plan. This included a private educational psychology report commissioned by Mr X prior to the EHC needs assessment process starting and a speech and language report completed during the assessment.
20. Despite the Council agreeing it was able to complete X’s draft EHC Plan in December 2023, it did not issue the draft Plan until the end of March 2024.
21. Mr X responded to the draft plan and requested some amendments. A second draft plan was issued in May 2024.
22. In May 2024 Mr X wrote to the Council to tell it he was considering applying for judicial review. The Council issued Z’s final EHC Plan 2 weeks later, at the end of May 2024. This is a delay of around 5 months.
23. The Council has told us it has a recovery plan in place to minimise the impact of the educational psychology shortage. The plan includes:
• Reviewing pay and conditions to attract more educational psychologists.
• Undertaking recruitment campaigns, including recruiting from overseas.
• Increasing the number of trainee and assistant educational psychologists.
• Reviewing service delivery to maximise the efficiency of the current workforce.
• Commissioning assessments from external agencies and locum educational psychologists.

Correspondence and complaint handling

24. Following the Council agreeing to complete an EHC needs assessment for Z, Mr X emailed the Council in mid-September 2023 with some questions about the EHC needs assessment process. Mr X wanted to know how this would impact the normal school admissions process. The Council did not respond to Mr X’s email, nor the three follow up emails he sent seeking a response.
25. Mr X continued to send emails to the assigned planning coordinator throughout the assessment and draft Plan process. Some of Mr X’s emails did not receive responses, and some received delayed responses. On more than one occasion, Mr X waited over three weeks for a response from the Council. The Council provided various reasons for the delays in responding to Mr X, including staff absences and staff workload.
26. Mr X sent a stage one complaint in October 2023. The complaint covered the lack of communication from the Council, the lack of support from the Council during the process and the delay in securing an educational psychology assessment. The Council issued a stage one complaint response in early November, within 10 days of receiving the complaint.
27. Mr X escalated his complaint to stage two on the same day as he did not feel he has received a satisfactory response. The Council did not provide a stage two response until March 2024, over four months after Mr X escalated the complaint.
28. The Council signposted Mr X to its Independent Advice and Support Service (IASS) in its initial acknowledgement of the EHC needs assessment request in April 2023, the refusal to assess letter in May 2023, the agreement to assess letter in August 2023, the draft issue letter in March 2024 and the final EHC Plan letter in May 2024.
29. The Council provided Mr X with a leaflet which included information on its Local Offer and Special Educational Needs and Disability Independent Advice Service (SENDIAS) alongside the parental contribution paperwork.

My Findings

30. The Council failed to comply with the statutory timeframe for completing the EHC needs assessment and issue a final plan following the agreement to complete the EHC needs assessment. This is service failure which caused Mr X distress, frustration and uncertainty.
31. The Council failed to communicate effectively with Mr X, respond to his concerns and provide the support he requested throughout the EHC needs assessment process. Many of Mr X’s emails were ignored, or he received a delayed response. This is fault which caused Mr X uncertainty, distress and frustration.
32. The Council issued a stage one complaint response within 10 working days. This is in line with its complaints policy. Mr X escalated his complaint to stage two on the same day as he did not feel he has received an adequate response.
33. The Council delayed in providing Mr X with a stage two complaint response. This caused Mr X further frustration, distress and uncertainty. The Council advised in its stage two response the delay was due to a backlog of cases.
34. The private educational psychology assessment was commissioned before the Council agreed to carry out an EHC needs assessment for Z. Therefore, the cost of this report was not incurred as a result of fault by the Council.
35. The Council signposted Mr X to its IASS on multiple occasions throughout the EHC needs assessment process. There is therefore no fault in the Council’s actions to provide impartial information, advice and support in accordance with the SEND Code of Practice.

Back to top

Agreed action

36. Within one month of the final decision the Council will:
• Apologise to Mr X for the delay in completing Z’s EHC Plan, its failure to communicate effectively during the EHC needs assessment process and the delay in providing a stage two complaint response. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make a symbolic payment of £500 to recognise the uncertainty, frustration and distress caused by the delay in issuing Z’s EHC Plan. This is calculated at £100 per month of delay in line with our guidance on remedies.
• Make a further symbolic payment of £250 to recognise the uncertainty, frustration and distress caused by the Council’s failure to respond to Mr X’s emails and the delay in issuing a stage two complaint response.
• In total the Council should pay Mr X £750.
37. Within three months of the final decision the Council will:
• Complete a review of the stage two complaint delay and provide an action plan to ensure any backlog of complaints is cleared and its complaints policy timeframes can be adhered to.
• Make sure there is a process in place for its SEND team to ensure the EHC process is not impacted by staff absence.
38. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

We uphold this complaint. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman