Summary: Miss X complained the Council delayed completing her son, Y’s Education, Health and Care (EHC) needs assessment in line with statutory timescales. The Council was at fault. It delayed deciding whether to issue Y with an EHC Plan within the statutory timescales, caused by a 14 week delay in obtaining Educational Psychologist (EP) advice. It then further delayed issuing Y’s final EHC Plan by 15 weeks after it received the EP advice. All of this impacted on Y’s education and meant he lost the opportunity to access the provision in his Plan earlier. It caused Miss X distress and uncertainty. The Council agreed to make payments to acknowledge this injustice.

The complaint

1. Miss X complained the Council delayed completing her son, Y’s Education, Health and Care (EHC) needs assessment which caused a further delay in issuing his final EHC Plan.
2. Miss X said the delays meant Y remained on a part-time timetable for longer than necessary which has impacted on his education and caused distress and uncertainty.

Back to top

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 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)
4. 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.
5. 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).
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

7. I considered Miss X’s complaint and information she provided.
8. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website.
9. Miss X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

Back to top

What I found

Relevant law and guidance

Education, Health and Care Plans

10. 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 the council can do this.
11. 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 Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;

• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

12. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement. The appeal can be against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.

Part time timetables

14. The Department for Education (DfE) non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.
15. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
16. The Council’s website outlines its position on the use of part-time timetables. It says the use of reduced timetables should be kept to a minimum and only used as an exceptional measure. Schools fill in a form called an ‘Annex R’ form to notify the Council of any children on a part time timetable.

What happened

17. Miss X has a son, Y, of primary school age. Y has diagnosed disabilities and special educational needs. Y attended a mainstream primary school however during 2023 he started to struggle, and his attendance began to deteriorate.
18. In June 2023 Miss X asked the Council to carry out an EHC needs assessment for Y which it agreed to do. In line with statutory timescales this meant the Council should have decided whether to issue Y with an EHC Plan by early October 2023. That being the case the Council should then have issued Y’s final EHC Plan by 3 November 2023.
19. In September 2023 and with Miss X’s agreement Y’s school placed him onto a part-time timetable (PTT). The school notified the Council using the Annex R form.
20. As part of the EHC needs assessment the Council requested advice from an Educational Psychologist (EP) in July 2023. The EP provided advice in mid-December 2023 which was a delay of 14 weeks.
21. The Council issued its decision to issue Y with an EHC Plan at the end of January 2024.
22. Miss X complained to the Council in March 2023 about delays in completing Y’s EHC needs assessment. She said it should have been completed by the end of 2022 but to date Y did not have a draft Plan. Miss X said Y was on a part-time timetable and needed the EHC Plan for his school to properly support him.
23. The Council responded and apologised for the delays which it blamed on an unprecedented number of EHC needs assessment requests over the last 18 months. In addition it said there was a local and national shortage of EPs. The Council outlined steps it was taking which included all EPs working at full capacity and ongoing recruitment of SEND staff, case officers and EPs. The Council said it would work on Y’s case as quickly as possible.
24. Records show Y remained on a PTT into 2024. The school reviewed the part-time arrangements four times between December 2023 and June 2024. There is also evidence the Council had oversight and involvement during this period. The January 2024 Annex R form submitted by the school said it was unable to support Y and it was still waiting for the EHC Plan. The April 2024 Annex R form said Y had slowly increased his hours at school, but it was still waiting for the support which an EHC Plan would provide.
25. The Council issued Y’s draft Plan at the end of April 2024. It issued Y’s final EHC Plan on 17 May 2024 naming Y’s current mainstream school as his placement. This was 28 weeks outside the statutory timescales. The letter to Miss X included a right of appeal to the SEND tribunal.
26. Following Y’s final EHC Plan records show in June 2024 that Y was slowly increasing his hours at school with the support from the Plan. He was still being supported at home in the afternoons.
27. Miss X remained unhappy and complained to us.

My findings

28. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
29. Following Miss X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by early October 2023 and then subsequently issued the final Plan by 3 November 2023.
30. The EP report should have been available to the Council by the start of September 2023 in order for it to have met the November deadline. The EP report was not complete until December 2023 which was a delay of 14 weeks and fault. It caused a delay in the Council deciding whether to issue Y with an EHC Plan. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases.
31. However, the delay in obtaining EP advice was not the only reason for the delay in issuing Y’s final EHC Plan. With EP advice in hand the Council should have issued Y’s final Plan by the start of February 2024. It did not do so until 17 May 2024 which is a further delay of 15 weeks which is fault.
32. In total the Council took 48 weeks to assess Y and issue his final EHC Plan instead of the 20 weeks statutory timescales due to the delay in obtaining EP advice and because of backlogs and staffing issues in its SEND service.
33. The faults above have caused both Y and Miss X and injustice. It was clear from the Annex R forms submitted by the school that the part-time arrangement was continued in agreement with Miss X and likely, without the EHC Plan all Y could cope with and manage at the time. However, once the EHC Plan was in place, Y’s hours started increasing. But for the faults and with an EHC Plan in place earlier, Y would have had earlier access to the provision in the Plan and his hours would likely have increased sooner meaning an earlier reintegration back into school. Therefore, the delays outlined above impacted on Y’s education and caused distress and uncertainty.
34. The Council has explained following similar cases investigated by the Ombudsman the action it is taking to meet the demands in its SEND service and to reduce the backlog in the EHC needs assessment process. This includes ongoing recruitment of EPs and SEN case officers. I have not recommended any further service improvements in respect of this.

Back to top

Agreed action

35. Within one month of the final decision the Council agreed to take the following action:
1. Pay Miss X £350 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in deciding whether to issue Y with an EHC Plan caused by the delay in obtaining advice from an Educational Psychologist.
2. Pay Miss X £1300 to acknowledge Y’s loss of provision in line with his EHC Plan caused by the 15 week delay in issuing Y’s final EHC Plan after it had obtained EP advice.
36. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

37. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman