Summary: Mrs X complained the Council delayed completing her daughter, 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 an 18 week delay in obtaining Educational Psychologist advice. It then further delayed issuing Y’s final EHC Plan by six weeks after it received the EP advice. This caused Mrs X distress, uncertainty and delayed her right of appeal to the SEND tribunal. The Council agreed to make a payment to acknowledge this injustice.

The complaint

1. Mrs X complained the Council failed to complete her daughter, Y’s Education, Health and Care (EHC) needs assessment within statutory timescales. This in turn caused a delay in issuing Y’s EHC plan.
2. The delays have caused Mrs X distress, frustration and have impacted on Y’s education.

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 Mrs 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. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their 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.

What happened

14. Mrs X has a daughter, Y who is of secondary school age and has special educational needs. Y attended a mainstream school but in 2022 records show she was struggling with the mainstream environment and her behaviour and time spent in the classroom deteriorated.
15. In November 2022 Mrs 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 January 2023. That being the case the Council should then have issued Y’s final EHC Plan by 17 April 2023.
16. Y stopped attending school in January 2023. The school put in place a package of alternative provision at this point for Y.
17. As part of the EHC needs assessment the Council requested advice from an Educational Psychologist (EP) at in January 2023. The EP provided advice in early July 2023 which was a delay of 18 weeks.
18. The Council issued its decision to issue Y with an EHC Plan two weeks after it received the EP advice. It issued Mrs X with a draft plan at the end of September 2023.
19. Records show Mrs X enrolled Y at another mainstream school (School 2) which she started at in September 2023, however this broke down and Y was put back on an alternative provision package in November 2023.
20. The Council issued Y’s final EHC Plan on 13 October 2023 naming School 2 as Y’s placement. This was 26 weeks outside the statutory timescales. The letter to Mrs X included a right of appeal to the SEND tribunal.
21. Mrs X complained to the Council in December. She complained the Council took too long to complete Y’s EHC needs assessment and issue her final plan. She complained the School 2 could not meet Y’s needs which means she remains on an alternative provision package.
22. The Council responded to Mrs X’s complaint. It apologised for the delay in completing Y's EHC needs assessment. It attributed the delays to the unprecedented number of requests for assessments over the last 18 months and due to the shortage of EPs both nationally and in its area. It outlined the action it was taking to address these issues including ongoing recruitment of staff. The Council confirmed it had named School 2 in Y’s EHC Plan and that additional funding was in place to deliver the provision in the plan. It said Mrs X had a right of appeal if she did not agree with School 2 however it was continuing to consult with alternative placements. It said it would consider naming a different placement once schools had responded.
23. Records show the Council consulted with further schools towards the end of the year and in February 2024 it issued an amended plan for Y naming a special school which Y is now attending.
24. Mrs X remained unhappy and complained to us.

My findings

25. 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.
26. Following Mrs X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by 9 January 2023 and then subsequently issued the final Plan by 17 April 2023.
27. The EP report should have been available to the Council by the start of March 2023 in order for it to have met the April deadline. The EP report was not complete until July 2023 which was a delay of 18 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.
28. 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 September 2023. It did not do so until 13 October 2023 which is a further delay of six weeks which is fault.
29. In total the Council took 46 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.
30. The faults outlined above have caused Mrs X distress and delayed her right of appeal to the SEND tribunal. It leaves uncertainty around whether more could have been done earlier to find Y a suitable placement and reintegrate her back into school earlier. Mrs X had a right of appeal to the SEN tribunal if she was unhappy with the content of Y’s EHC Plan, however it is positive to see the Council has not issued an amended plan naming a special school for Y.
31. 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. The Council should provide an update on its recruitment and staffing issues in its SEND service which is the main reason for the delays in this case.

Back to top

Agreed action

32. Within one month of the final decision the Council agreed to take the following action:
1. Pay Mrs X £450 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 Mrs X £300 to recognise the distress and uncertainty caused by the six week delay in issuing Y’s final EHC Plan after it had obtained EP advice.
33. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

34. 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