Summary: Miss X complains on behalf of her son, Y, the Council failed to issue an EHC Plan within the statutory timescale. Miss X says this has resulted in Y being in an unsuitable setting and has caused both him and her family distress. We have found fault in the Councils actions for delaying in issuing the EHC Plan. The Council has agreed to issue an apology and make a financial payment and service improvements.

The complaint

1. Miss X complains on behalf of her son, Y, the Council failed to issue an Education Health Care (EHC) Plan within the statutory timescale.
2. Miss X says this has resulted in Y being in an unsuitable setting and has caused both him and her family distress.

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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. 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. 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)
8. 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

9. I have considered the information provided by Miss X and the Council. I have also discussed the complaint with Miss X on the telephone.
10. Both Miss X and the Council were invited to comment on my draft decision. Any comments received have been considered before a final decision was issued.

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What I found

11. 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. 
12. 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.
• 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 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 within 15 calendar days.

What happened

13. Miss X requested an EHC needs assessment for Y in December 2022. The assessment process started in early January 2023.
14. The Council received the Educational Psychologist (EP) report, which forms part of the needs assessment, in late March 2023. This was around four weeks later than expected.
15. The Council issued a draft EHC Plan in late September 2023 and a Final Draft was agreed in December 2023.
16. Miss X complained to the Council about the delays in issuing the EHC Plan in February 2024.
17. The Council responded to the complaint in February 2024 to explain the delays. It says these were caused by receiving the EP report later than expected and significant staffing capacity issues. The Council apologised for the delay.
18. The Council issued a Final Plan for Y in late February 2024.

Analysis

19. Miss X asked the Council to carry out an EHC needs assessment on 1 December 2022. As the Council decided to issue Y with an EHC plan it should have completed the assessment and issued a final EHC plan for Y by 20 April 2023. Failure to do so was fault.
20. There was a small delay of around four weeks in the Council receiving the EP report. This was a service failure by the Council. However, most of the delay was following receiving this. I understand the Council has said it had significant staffing capacity issues which led to the delay in issuing the draft EHC Plan. I appreciate the Council was experiencing staffing issues, however it has a statutory duty to complete the EHCP process with the statutory timeframes, and to not do so is fault.
21. The Council received the EP report on 28 March 2023, but it did not issue a draft EHC Plan until 26 September 2023. There was a further delay following the draft plan being agreed in December 2023 and the Council issuing the Final EHC Plan on 29 February 2024. This was a delay of around 45 weeks.
22. The delays in assessing Y and issuing a final EHC plan have caused Miss X and Y distress and frustration, as well as a delay in her appeal rights to the SEND tribunal.
23. Part of Miss X’s complaint is that the Council has named an unsuitable setting in the EHCP. I understand Miss X has exercised her appeal right to challenge the content of the plan including the named setting at the SEND Tribunal. We cannot consider any issues when someone has a right of appeal, reference or review to a tribunal about the same matter. Therefore, this part of Miss X’s complaint is outside of the Ombudsman’s jurisdiction.

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Agreed action

24. Within one month of a final decision the Council should:

• Apologise to Miss X for the delays in assessing Y and issuing a final EHC Plan.
• Pay Miss X £1,000 to recognise the distress, frustration and uncertainty caused to her and Y by the delays in issuing Y’s final EHC Plan. This is calculated at £100 per month from the point the EHC Plan should have been issued.

25. Within four months of the final decision the Council should:

• Provide if already in existence or produce a plan detailing what action it is taking to address the shortage of EP’s and the delays in issuing EHC Plans and take it to the relevant scrutiny committee or panel for this issue.

26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have found fault in the actions of the Council for delaying in issuing Y’s EHC Plan.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman