Summary: Miss X complained about the Council’s delay completing her child, Y’s Education, Health and Care needs assessment. We find fault, causing injustice to Y and avoidable distress and uncertainty to Miss X. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complained the Council failed to complete her child, Y’s Education, Health and Care (EHC) needs assessment and issue their EHC Plan within the statutory timescales.
2. Miss X also complained about poor communication from the Council.
3. Miss X says the delay has had an impact on Y’s education and her ability to work.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

6. I spoke to Miss X and considered the information she provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. I referred to the Ombudsman Guidance on Remedies, (a copy of which can be found on our website).
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation

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 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). 

What happened

11. In July 2023, Miss X requested a EHC needs assessment for her son, Y.
12. In August 2023, within the statutory timescale, the Council told Miss X it agreed to carry out an assessment.
13. In January 2024, Miss X complained to the Council as she had not received a draft EHC Plan for Y. The statutory timescale had been missed.
14. In February 2024, the Council responded to Miss X’s complaint and apologised for the delay.
15. Miss X was dissatisfied with the response and immediately raised a stage 2 complaint. The Council acknowledged the complaint and advised a response would be sent in March 2024.
16. In March 2024, the Council issued Y’s final EHC Plan. The plan named Y’s mainstream school as their educational placement and set out the special educational needs support the school should provide for Y.
17. In April 2024, when the Council missed its deadline for responding to the stage 2 complaint, Miss X brought her complaint to the Ombudsman.
18. Later in April 2024, the Council issued its final complaint response, acknowledging the delays in the EHC needs assessment and attributing them to high demand for services. The Council said it was increasing staff to meet future demand.

My findings

19. The Council has accepted it did not complete the EHC needs assessment or issue the final EHC Plan within the statutory timescales.
20. Y’s EHC Plan should have been issued within 20 weeks of Miss X’s request for assessment in July 2023, so in November 2023. It was not issued until March 2024, a delay of three and a half months. This delay is fault.
21. Miss X says the delay has impacted Y’s education as he was on a reduced timetable while waiting for the EHC Plan to be issued. It also caused avoidable distress and uncertainty for Miss X.
22. The Council responded to Miss X’s stage 1 complaint within the 20 working days specified in its complaint procedure. However, there was a delay of 18 working days in responding to her stage 2 complaint. This delay is fault, though the Council kept Miss X updated during the delay and responded to her emails.
23. In its stage 2 complaint response, the Council did not apologise to Miss X for the delays in handling the complaint or the EHC needs assessment, nor did it offer any further remedy. This was fault. The Council missed out on an opportunity to resolve the complaint and caused Miss X time and trouble having to complain to the Ombudsman.

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Agreed action

24. To remedy the injustice caused by the above faults and within four weeks from the date of our final decisions, the Council has agreed to:
• apologise to Miss X in line with our Guidance on Making an effective apology; and
• pay Miss X £350 in recognition of the frustration, uncertainty and distress caused by the delay in EHC needs assessment.
25. Within two months of our final decision, the Council has agreed to:
• Brief all staff working on EHC needs assessments of our expectations for remedying complaints and good administrative practice in line with our Guidance on Remedies. Key principles include:
1. we expect the Council to let parents and children / young people know if it is not going to be able to meet the statutory timescales;
2. we expect the Council to consider offering a symbolic payment if it receives a complaint from a parent about delay and this has resulted in a significant injustice to their child; this will be most apparent in cases where a child’s provision will have been impacted by a delay – for example, following amendment of an EHC plan or where a parent has gone on to successfully appeal the Council’s decision following an annual review.
26. I have not recommended any action for the Council to take to improve its services. During our investigation, the Council assured the Ombudsman of the actions it is taking to address delays within its SEND team. The Council expects it will take an additional twelve months to return to a normal operational status for statutory compliance with EHC needs assessments and annual review cycles.
27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. I have completed my investigation. There was fault by the Council. The Council has agreed to the above action as a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman