Summary: Mr X complains that the Council delayed in issuing a final Education, Health and Care Plan for his child Z. The Council was at fault as there was a delay in receiving an Educational Psychologist’s report and delay in issuing Z’s final Education, Health and Care Plan. The delays caused distress and frustration to Mr X and his family and Z missed specific special educational needs provision for a period of 17 weeks. The Council also failed to discuss a personal budget with Mr X. The Council has agreed to remedy the injustice by apologising to Mr X and making a symbolic payment of £1300 to acknowledge the distress caused to him and his family and to acknowledge Z’s missed special educational provision.

The complaint

1. Mr X complains the Council failed to follow the correct processes and procedures from when he requested an Education Health and Care Needs Assessment for his child to the issuing of the final Education, Health and Care Plan. As a result, it delayed in issuing the final Education, Health and Care Plan which caused significant distress and anxiety to Mr X and his family.

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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. 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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
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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What I have and have not investigated

9. I have investigated the time taken by the Council to deal with Mr X and Miss Y’s request for an Education, Health and Care (EHC) Plan. I have not investigated how the Council came to its decisions regarding the content of the Plan including the information provided to panels, consultation with schools and how it considered social care provision. This is because Mr X and Miss Y have appealed against the content of the EHC Plan and named provision to the SEND Tribunal. The process by which the Council made its decisions on the content of the EHC Plan are not separable from the decisions which Mr X and Miss Y are appealing.
10. I have investigated Mr X’s complaint about the Council not notifying him that he could request a personal budget. This is because there is no right of appeal against this decision.
11. Mr X also complained that the Council did not make education provision for his child in January and February 2024. I have not investigated this complaint as he has not made a complaint about this matter to the Council. Before we can investigate a complaint, the Council must be aware of the complaint and be given the opportunity to investigate it and respond to Mr X.

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How I considered this complaint

12. I have:

• Considered the complaint and the information provided by Mr X;
• Discussed the issues with Mr X;
• Made enquiries of the Council and considered the information provided;
• Invited Mr X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Law and guidance

13. A child or young person with special educational needs may have an 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.
14. 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

15. 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).
16. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child or young person’s social care needs. Where a child or young person is not previously known to social care this will require a new assessment to identify if there are social care needs which need to be included in the EHC Plan.
17. If a parent disagrees with the social care support set out in the EHC Plan they can make a complaint to the council. Alternatively, if they are going to appeal to the Tribunal about other parts of the EHC Plan, they can ask the Tribunal to consider the social care elements. If the tribunal makes a finding on the social care elements, it is non-binding.
18. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
19. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.

What happened

20. The following is a summary of the facts relevant to my consideration of the complaint. It does not include everything that happened.
21. Mr X’s and Miss Y’s child, Z, has a diagnosis of Autism Spectrum Condition (ASC) and Attention Deficit Hyperactivity Disorder (ADHD).
22. In December 2022, Mr X requested an EHC Needs Assessment for Z. The Council notified Mr X in mid January 2023 that it agreed to assess Z. This decision was made within the statutory timescale of six weeks. The letter notifying Mr X of the Council’s decision to assess Z referred him to the website for the Council’s Local Offer. This detailed the support available for children and young people with special educational needs and disabilities.
23. In mid April 2023, Mr X and Miss Y chased the Council for an update on the assessment. The Council advised that it was waiting for a copy of the EP assessment report for Z. The Council received the EP report on 22 May 2023.
24. The Council’s records show Miss Y chased the Council for an update in mid June 2023. An officer advised Miss Y that a panel would shortly consider Z’s assessment to decide if the Council should issue a EHC Plan for him. A few days later the Council notified Mr X and Miss Y that it would issue an EHC Plan for Y.
25. The Council issued the draft EHC Plan in mid July 2023. Mr X raised concerns that the Council had only given them 15 days to comment on the draft EHC Plan despite the Council failing to meet the statutory timescales. The Council’s records show an officer said they could request more time to respond if necessary. The Council apologised for the failure to meet the statutory timescales which was due to a significant increase in demand for EHC needs assessments and a national shortage of EPs. It also apologised for the delay in holding a co-production meeting to discuss the draft EHC Plan. I understand the co-production meeting was held in mid September 2023.
26. Mr X and Miss Y chased the Council in early October 2023 for an update on the on Z’s EHC Plan and whether it would name their preferred school which was a special school. The Council advised that Z’s placement would be discussed at a multi agency panel for a decision. A week later the Council notified Mr X and Miss Y that it would not agree to their preferred placement and Z’s needs could be met in a mainstream school.
27. Mr X and Miss Y and an officer discussed Z’s placement in late October 2023. The Council issued a further draft EHC Plan. The Council issued the final EHC Plan on 16 November 2023. This was 28 weeks outside the statutory timescale of 20 weeks.
28. Mr X and Miss Y have appealed to the Tribunal regarding the content of the EHC Plan including the failure to include social care provision and the education provision named.

Complaint

29. Mr X and Miss Y complained to the Council about a number of matters including the delays in issuing Z’s final EHC Plan and failure to notify them of the right to request a personal budget. The Council considered the complaint through its three stage complaints procedure. It acknowledged the delay in issuing the final EHC Plan which it said was due to a national shortage of EPs and apologised for the delay. In its stage 3 response the Council said officers would contact Mr X to discuss how he could apply for a personal budget.
30. In response to my enquiries, the Council has said:

• It has experienced significant delays in the statutory assessment process due to the national shortage of EPs which has impacted on the number of EPs in its area.
• The average time taken from the date an EHC needs assessment is requested to the issue of the final EHC Plan is 44 weeks. It has implemented a recovery programme to address the delays and progress is being made.
• It has recently been able to add capacity to its EP and assessment teams to reduce the backlog of assessments and it is seeing a significant increase in the number of EHC Plans issued over the last four months.
• It has not received a request for a personal budget from Mr X and Miss Y.
• Its notification letters to parents following a decision to agree to an EHC needs assessment signpost parents to the Local Offer which gives information on the statutory assessment process. But the Council acknowledges this is not explicit enough regarding social care assessments and it is reviewing the information given to parents at the start of the process.
• It will offer a remedy of £500 to acknowledge the distress caused to Mr X and Miss Y by the delay in receiving the EP’s assessment report and not issuing Z’s final EHC Plan within the statutory timescales.

Analysis

Delay in receiving the Educational Psychologist’s assessment and delay in issuing the final EHC Plan

31. The Council should have issued Z’s final EHC Plan by 2 May 2023. The Council did not issue the final EHC Plan until 16 November 2023 so it took 28 weeks longer to issue the final EHC Plan than it should have done.
32. The Council has said the delay was caused by the national shortage of EPs. The EPs assessment report should have been available to the Council by early March but the Council did not receive it until 22 May 2023. This is a delay of approximately 12 weeks. I have not seen evidence of efforts made by the Council to mitigate the delay in obtaining an EP report. But I accept, on balance, the shortage of EPs will have contributed to the delay. This is service failure and is fault.
33. The delay in obtaining the EP’s report was not the only reason for the delay in issuing Z’s final EHC Plan. We consider that councils should take no longer than eight weeks to issue the final EHC Plan after receiving the EP’s report. So, the Council should have issued Z’s final EHC Plan by 17 July 2023. The Council did not issue the final EHC Plan until 16 November 2023 which is a delay of 17 weeks. I am mindful that a small part of the delay was caused by scheduling a co-production meeting when teaching staff could attend. A further delay was also caused by trying to reach agreement with Mr X and Miss Y on the content of the EHC Plan, including the placement. But the Council must issue EHC Plans in a timely manner and it should not let its progress drift as it did in this case. The further delay of 17 weeks is therefore fault.
34. The Council has offered a remedy of £500 to acknowledge the distress caused to Mr X and Miss Y by the delay in receiving the EP’s assessment report and not issuing Z’s final EHC Plan within the statutory timescales. I welcome the Council’s offer but it is appropriate and proportionate to recommend a different remedy in line with our guidance on remedies.
35. The delay in receiving the EP’s assessment report will have caused frustration and distress to Mr X and Miss Y as they had to repeatedly chase progress of the EHC assessment. I cannot know, on balance, what provision would have been in place for Z but for the delay in carrying out the EP’s assessment. This is because we cannot know what Z’s needs were before the assessment took place. But the Council should make a symbolic payment of £300 to Mr X and Miss Y to acknowledge the distress and frustration caused to them.
36. The further delay of 17 weeks in issuing Z’s EHC Plan caused additional distress and frustration to Mr X and Miss Y as they had to repeatedly chase for progress on the EHC Plan. It also delayed Mr X and Miss Y’s right of appeal to the SEND Tribunal. The Council should therefore make a further symbolic payment of £300 to Mr X and Miss Y to acknowledge this distress and frustration.
37. The delay in issuing Z’s final EHC Plan meant Z did not receive the specified special educational needs provision for 17 weeks longer than necessary. Our guidance on remedies recommends a payment of between £900 to £2400 per term to acknowledge the loss of education. Z was in education during this period so it is appropriate to recommend a payment at the lower end of the scale. Part of the period spans the summer holidays. So I consider Z missed the special educational provision in his EHC Plan for three quarters of a term. It is therefore appropriate and proportionate to recommend a symbolic payment of £700 to acknowledge the impact on Z of not receiving the special educational needs provision for three quarters of a term.
38. I have not investigated how the Council considered if it should include social care provision for Z in the EHC Plan. This is not separable from the Council’s decision not to include social care provision which Mr X and Miss Y are appealing. But I welcome the Council’s acknowledgement that the Local Officer does not provide sufficient information regarding social care assessments. I also welcome the Council’s undertaking to improve the information it provides at the start of the assessment process.

Personal budget

39. The Council’s covering letter to the draft EHC Plan signposted Mr X and Miss Y to the Local Offer website which provides information on personal budgets. Nevertheless, it would have been appropriate for the Council to have explored with Mr X and Miss Y if they understood that they could request a personal budget following the issue of the draft EHC Plan. There is no evidence to show the Council discussed a personal budget with them. There is no evidence to show officers contacted Mr X and Miss Y to discuss a personal budget as the Council’s stage three complaint response said they would do. On balance, I consider the failure to discuss a personal budget with Mr X and Miss X is fault. I cannot know if the Council would have agreed to a personal budget. But the failure to discuss a personal budget with Mr X and Miss Y causes uncertainty to them as they cannot know if Z could have received one.
40. The Council should remedy this injustice by inviting Mr X and Miss Y to apply for a personal budget for Z for his current EHC Plan and considering their application.
41. It is not necessary to recommend service improvements to address the delays in issuing final EHC Plans. The Council has a SEND action plan to improve its performance in this and other areas. But the Council should remind officers that they should discuss with parents/carers whether a personal budget is appropriate following the issue of the draft EHC Plan.

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Agreed action

42. The Council will:
1. Send a written apology to Mr X and Miss Y for the distress and frustration caused to them by the delays in receiving the Educational Psychologist’s assessment report, delay in issuing Z’s final Education, Health and Care Plan and failure to discuss a personal budget with them. 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.
2. Make a symbolic payment of £600 to Mr X and Miss Y to acknowledge the distress and frustration caused to them by the faults identified.
3. Make a symbolic payment of £700 to Mr X and Miss Y to acknowledge Z’s missed special educational needs provision for three quarters of a term. This payment should be used for Z’s educational benefit.
4. Invite Mr X and Miss Y to apply for a personal budget for Z for his current Education, Health and Care Plan. The Council should then consider any application submitted by Mr X and Miss Y within one month. If the Council agree to provide a personal budget it should backdate it to 16 November 2023 which is the date Z’s current Education, Health and Care Plan was issued.
5. By training or other means, remind officers that they should discuss with parents/carers whether a personal budget is appropriate once it has issued the draft Education, Health and Care Plan.
43. The Council should take the action at a) to d) within one month and the action at e) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have completed my investigation and I uphold Mr X’s complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman