Summary: We have completed our investigation. The Council was at fault. It delayed deciding Y’s special educational needs support and failed to communicate properly with Miss X. This caused Miss X undue confusion and distress. This distress continues as the delay is ongoing. The Council should apologise to Miss X, make a payment to her to recognise the delay and distress caused and reach a decision to ensure appeal rights are engaged.

The complaint

1. Miss X complains about delay in the EHC Needs Assessment process for her child, Y. She also complains about the lack of communication and formal correspondence from the Council.
2. She says the delay is causing mental and emotional distress for her and her family. Miss X reports suffering financial loss, having paid for private assessments for her child, and for provision her child needs.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
9. 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)

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What I have and have not investigated

10. I have investigated the delay in the EHC Needs Assessment process.
11. There is a right of appeal to the SEND Tribunal against a decision not to carry out an EHC Needs Assessment. In most cases we would not investigate this period.
12. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
13. However, Miss X did not receive a decision letter or panel notes. She was not formally notified about her right of appeal to the SEND Tribunal.
14. Therefore, I have exercised my discretion to extend the scope of the investigation to include the period where the Council failed to communicate the first appealable decision with Miss X.
15. I cannot investigate actions taken by the school.
16. I will not investigate which agencies the Council consulted during the EHC Needs Assessment process. This is because, Miss X can use her right to appeal the content of the final EHC Plan at the SEND Tribunal if she considers the Plan is flawed due to the Council’s failure to consult.

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How I considered this complaint

17. I considered the complaint and information provided by Miss X.
18. I made written inquiries of the Council and considered its response along with relevant law and guidance.
19. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
20. Miss X and the Council had the opportunity to comment on the draft decision. I have considered any comments before making a final decision.

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What I found

Law and guidance

21. 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. 
22. 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 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 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.
• 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

23. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

24. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

What happened

25. This is a brief outline of the complaint and communication between Miss X and the Council.
26. In mid - September 2023 Miss X asked the Council to carry out an EHC Needs Assessment for her child, Y.
27. At the start of November 2023 Miss X complained to the Council about delay in the process.
28. The Council upheld Miss X’s complaint at stage one.
29. In late November 2023, the Council decided not to carry out an EHC Needs Assessment for Y. Two weeks later the SEN case worker told Miss X about this, in an email.
30. Miss X did not receive a formal decision letter and therefore was not informed about her right to appeal to the SEND Tribunal following the decision not to assess.
31. Miss X asked for a copy of the panel meeting minutes where the decision was taken. She never received them.
32. Miss X asked the Council about mediation. The Council told her she had to wait to receive a formal decision letter before she could ask for mediation. She never received a formal decision letter.
33. In December 2023 Miss X progressed her complaint to stage two.
34. She complained about the delay in the EHC Needs Assessment process and that she had still not received a formal decision or copy of the panel meeting minutes.
35. The Council asked Miss X if she wanted the panel to reconsider its decision. Miss X did not want to start the whole process again. She did not want her appeal rights or rights to ask for mediation further delayed.
36. The Council continued to apologise to Miss X during December.
37. In mid-January the Council wrote to Miss X telling her it had reconsidered its original decision not to assess her child. An EHC Needs Assessment would take place. The Council informed Miss X there was a 16plus week wait for an Educational Psychologist (EP) assessment. The Council said this would create further delay.
38. Discussions continued during January between Miss X and the Council about which agencies would inform the Needs Assessment.
39. Miss X chose to pay for some reports to be completed privately, about her child’s health. This included an occupational therapy assessment.
40. The complaint process was completed towards the end of January 2024. The delay was recognised by the Council. It apologised for the poor communication received by Miss X. In the complaint response it said the Council had sent the SEN Panel meeting minutes to Miss X with a formal decision letter. It did not offer Miss X a remedy. Miss X said she never received the panel meeting minutes.
41. In February the Council told Miss X it could not use the report she provided, by a private EP. Miss X asked the Council to tell her why.
42. The Council said the reasons it could not use the report were:
• “the consideration of other sources of information,
• the triangulation of that information,
• consideration of progress over time,
• child/young person’s views and aspirations,
• parent/carer views and aspirations,
• the alignment of long term outcomes with provision and refinements around specificity.”
43. In mid-March the Council told Miss X that panel had been cancelled. This was because the EP had not yet assessed Y.
44. The EP completed their report and sent it to the Council at the start of July.
45. The Council sent the draft EHC Plan to Miss X late August 2024 A final version is yet to be issued.

My findings

46. The Council said the delay in issuing the first decision not to assess, to Miss X, was caused by a combination of not allocating a casework officer to the case (in a timely manner) and an increase in applications for plans in the Council area.
47. I cannot accurately calculate the initial delay, as the first decision was not communicated formally with Miss X. There was delay by the Council, and this was fault.
48. Failure to send out a formal decision letter to Miss X in November 2023 was also fault by the Council. This impacted Miss X’s right to appeal to the SEND Tribunal and right to ask for mediation with the Council. This also caused undue confusion, time and trouble for Miss X as she repeatedly asked for updates about the assessment.
49. The Council did not have to share a copy of the panel meeting minutes with Miss X. However, it should be able to evidence its decision making.
50. There is no record of how the Council came to its first decision in November 2023. The Council have already admitted fault. It said it lost the panel meeting minutes and cannot provide an explanation.
51. The SEN case worker kept in regular contact with Miss X.
52. However, at times communication from the Council was unclear and confusing. When the Council told Miss X why it could not use the EP report, she had privately paid for, the language used was not clear or written in plain English.
53. Some parents obtain their own EP report. Miss X chose to pay privately for 4 separate reports about her child’s health and development.
54. The Council did not have to use the EP report Miss X paid for. However, it did have to explain itself to Miss X, should it choose not to.
55. Whilst the language used by the Council was unhelpful at times, the Council told Miss X why it would not use the EP report she paid for. Therefore, I cannot find fault with the Council, about this point.
56. The other 3 reports Miss X paid for and shared with the Council were not mandatory parts of the EHC Needs Assessment process. Therefore, the Council was not required to consider them.
57. We would only expect the Council to reimburse Miss X the cost of the EP report where it had relied solely on it for the EHC needs assessment. This is not the case. I cannot recommend the Council reimburses Miss X for the reports she has organised and paid for.
58. During the assessment process, the Council should consult with agencies it considers are relevant in making an assessment about Miss X’s child. The Council should also consider Miss X’s views.
59. Miss X can appeal to the SEND Tribunal about the contents of the final EHC Plan if she considers its content is flawed because of a failure to use the other assessments she provided.
60. Overall, there has been significant delay in providing Miss X with decisions about her request for an EHC Needs Assessment and in drafting the EHC Plan. The final plan is not yet complete.
61. Due to this, I am unable to determine the loss of educational provision for Y.
62. However, the initial uncertainty of not knowing whether Y would be issued with a plan caused Miss X, and her family, distress.
63. The delay in receiving a final plan has added to that distress.
64. Delay from January 2024 was caused by a shortage in Educational Psychologists. This is a national issue, and the Ombudsman has a specific approach for determining recommendations about this.
65. It took the Council 32 weeks from the date it decided it would make an EHC Needs Assessment to issuing a draft EHC Plan to Miss X.
66. The overall wait for a final EHC Plan (12 months and counting) is still causing a delay to Miss X’s right to appeal to the SEND Tribunal if she is unhappy with the content.
67. This is fault by the Council. The fault related to the delay in the overall process is due to service failure. The Council is unable to deal with the number of requests for special educational needs support in its area.
68. The Council have said there has been an increase in requests for EHC Needs Assessments.
69. In the last 12 months 85% of EHC Needs Assessments took the Council longer than 20 weeks to complete and 35% took longer than 40 weeks.
70. In February 2024, Ofsted, and the Care Quality Commission (CQC) inspected the SEND services provided by the Council. Ofsted and the CQC published a joint report in April 2024. The Local Area Partnership was asked to produce and publish a strategic plan based on recommendations made in the report.
71. In May 2024 the Council published its Local Area Improvement Plan.
72. Every stage of the EHC Needs Assessment process is considered in the plan including the delay children and families are experiencing and how the Council plans to address this moving forward.
73. The accompanying action plan addresses the shortage of specialist staff in place to contribute to EHC Needs Assessments.
74. The Council has acknowledged the need to increase the number of Senior Educational Psychologists in the team to meet capacity.
75. In September 2024 the Council agreed to recruit 3 further full-time specialists into its assessment team. It intends to ensure at least 70% of EHC Needs Assessments are completed within the 20-week guideline.
76. Progress on the priority areas identified in the improvement plan will be monitored through existing governance including oversight by the SEND Partnership Board.

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Agreed action

77. Within four weeks of issuing a final decision the Council should
• apologise to Miss X in line with our guidance on Making an Effective Apology. 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,
• issue the final EHC Plan to Miss X, without further delay,
• make a symbolic payment of £300 to Miss X. This is to recognise the avoidable distress, and lost opportunity of a right to appeal, caused by the Council when it failed to issue a formal decision letter to Miss X in November 2023. This payment also recognises the communication issues experienced by Miss X,
• make a payment to Miss X of £100 per month since the Council should have issued its final EHC Plan in June 2024.
78. The Council should provide us with evidence it has complied with the above actions.
79. We are not making service improvement recommendations about the delay in the EHC Needs Assessment process. This is because we are satisfied the Council is taking steps to address this.

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Final decision

80. I have now completed my investigation. The Council was at fault. The action I have recommended is a suitable remedy for the injustice caused to Miss X and Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman