Summary: Miss X complained the Council delayed in assessing her child, A, for an Education, Health and Care (EHC) Plan. The Council was at fault which caused Miss X and A frustration and distress and meant A missed out on some special education provision. The Council has agreed to apologise, make a payment to Miss X and produce a plan setting out the action it intends to take to address the delays.

The complaint

1. Miss X complained the Council delayed in assessing her child, A, for an Education, Health and Care (EHC) Plan. She also complained the Council failed to communicate with her during the process and failed to respond to her complaint on time. She says this has impacted on her mental health and delayed A’s access to Special Educational Needs provision. She wants the Council to issue an Education, Health and Care Plan and compensate her for the impact of its failings.

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The Ombudsman’s role and powers

2. 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)
3. 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.
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. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share the final decision on this complaint with Ofsted.
6. 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

7. I have discussed the complaint with Miss X and considered the information she provided. I also considered information provided by the Council.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Law and guidance

9. 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.
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:
• If the Tribunal orders the Council to carry out an assessment, it must notify the parents, within two weeks, that it will carry out the assessment, and decide whether to issue an EHC Plan or refuse to issue a Plan within 10 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the SEND Tribunal order until the final EHC Plan is issued must take no more than 14 weeks.
• 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.
11. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).
12. There is a right of appeal to the Tribunal against a decision not to carry out an EHC needs assessment or reassessment.

The Council’s complaint process

13. The Council operates a two-stage complaint process. It says it will respond to stage 1 complaints within 20 working days, and stage 2 complaints within an additional 20 working days.

What happened

14. On 21 September 2023 the Tribunal ordered the Council to carry out an EHC needs assessment of A. The Council wrote to Miss X confirming it would carry out an assessment. It said if, after the assessment, it did not agree to issue an EHC Plan it must do so within 16 weeks. It said if it did decide to issue an EHC Plan it must do so within 20 weeks.
15. In January 2024 Miss X complained to the Council about how long it was taking to carry out the assessment. The Council upheld the complaint. It explained this was due to a lack of Educational Psychologists and it apologised.
16. Miss X asked the Council to escalate her complaint to stage 2 on 18 January 2024. The Council did not respond to the stage 2 complaint until 30 April 2024. It repeated the delay was due to a lack of Educational Psychologists and apologised. It said it had recruited more temporary psychologists but was still struggling to keep up with demand. It said it had allocated a psychologist on 21 March 2024, and expected their advice by 2 May 2024. The Educational Psychologist finished their report on 24 March 2024.
17. The Council issued A’s draft EHC Plan on 31 May 2024. Miss X returned her comments. The Council then issued the final EHC Plan on 3 July 2024. Miss X was satisfied with the content of the plan.

My findings

EHC Needs Assessment and Plan

18. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Tribunal ordered the Council to carry out an assessment on 21 September 2023. The Council should have notified Miss X of the outcome within two weeks of the Tribunal order and issued a final EHC plan within 14 weeks of the Tribunal order. So the Council should have told Miss X it was restarting the assessment process by 5 October 2023 and issued the final EHC Plan by 28 December 2023. The Council told Miss X it was re-starting the assessment process on 11 October 2023 and did not issue the final EHC Plan until 3 July 2024. This was a delay of six months. This is fault.
19. EHC needs assessments must include advice from an Educational Psychologist. The Council should have ensured it received the psychologist’s advice within six weeks. It took 24 weeks to receive this advice. It then took a further two months to issue the draft EHC Plan.
20. The Council has not met these timescales due to the shortage of Educational Psychologists and the increased demand for EHC needs assessments. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in progressing A’s EHC needs assessment is fault (service failure). I cannot say whether the delay that occurred before the Educational Psychologist gave their advice meant A lost out on special educational provision. This is because the advice reflected A’s needs at the time of the assessment, not necessarily as they would have been when it was originally due. However, the fault caused Miss X and A frustration, distress and uncertainty.
21. Once the Council received the Educational Psychologist advice in March, it should have issued A’s final EHC Plan within around six weeks. It took the Council 14 weeks to issue the final EHC Plan. This was eight weeks too long and was fault.
22. I am satisfied on balance, that the EHC Plan the Council issued in July 2024 is not materially different from what it would have been if the Council had issued the Plan in early May 2024, six weeks after it received the Educational Psychologist advice. Therefore, allowing for school holidays, A missed just over half a term’s special educational provision. We typically recommend between £900 and £2400 per term in recognition of lost provision. Considering A was attending school during this period, and the provision in their plan, I have recommended £600 for the missed provision, in line with our Guidance on Remedies.

Communication

23. When the Council told Miss X it agreed to assess A, it told her it had 20 weeks to issue the final EHC Plan, when it had 14. This is fault. The Council responded to Miss X’s stage 1 complaint within its timescales. However, it took 72 working days to respond to Miss X’s stage 2 complaint. A delay of 52 working days. This is fault. The Council’s inaccurate communication and a delay in responding to Miss X’s complaint added to Miss X’s frustration and uncertainty.

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Agreed action

24. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise to Miss X for its delay in issuing A’s final EHC Plan and the frustration caused by its poor communication and delayed complaint response. 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.
2. Pay Miss X £400 to recognise the distress and frustration caused by the delay in assessing A. This equates to around £100 per month for the time between when it should have received the EP advice to when it received that advice.
3. Pay Miss X £600 to recognise the impact of the loss of special educational provision on A.
25. Within three months of the final decision the Council has agreed to take the following action:
1. Provide us with an action plan setting out the efforts it is making to reduce delays in the EHC Plan process including delays in obtaining Educational Psychologist advice and delays in the plan writing process.
2. Review its SEN correspondence templates, where the Tribunal has ordered the Council to carry out an assessment, to ensure it gives parents accurate timescales, in line with the legislation.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have completed my investigation and found fault by the Council which caused injustice, which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman