Summary: Miss X complained the Council delayed completing her son, 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 timescale, caused by a seven week delay in obtaining Educational Psychologist advice. It then further delayed issuing Y’s final EHC Plan by 27 weeks after it received the EP advice. This caused Miss X distress, uncertainty and delayed her right of appeal to the SEND tribunal. The Council agreed to make a payment to acknowledge this injustice and explain what action it is taking to reduce the backlogs in the EHC needs assessment process.

The complaint

1. Miss X complained the Council failed to complete her son, 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 Miss X distress, frustration and have impacted on Y’s education.

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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. 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).

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How I considered this complaint

7. I considered Miss 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. 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

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. Miss X has a son, Y who is of primary school age with special educational needs. At this time Y was being educated at home due to his needs. In April 2023 Miss 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 August 2023. That being the case the Council should then have issued Y’s final EHC Plan by 6 September 2023.
15. As part of the EHC needs assessment the Council requested advice from an Educational Psychologist (EP) at the end of May 2023. The EP provided advice at the end of August 2023 which was a delay of seven weeks.
16. The Council issued its decision to issue Y with an EHC Plan at the end of October 2023. It issued Miss X with a draft plan in mid-December 2023.
17. Miss X complained to the Council in March 2024 as she had not received Y’s final EHC Plan. The Council responded and apologised for the delay which it blamed on an unprecedented number of EHC needs assessment requests over the last 18 months. It said there was a shortage of EPs in its area to meet the increased demand. It said it was unable to finish the assessment until it had the EP advice and it was currently consulting with schools. It outlined the steps it was taking to address the shortage of EPs which includes recruiting staff and using agency staff to reduce delays.
18. The Council issued Y’s final EHC Plan at the end of April 2024. It named ‘mainstream school’ as Y’s placement. This was 34 weeks outside of the statutory timescales.
19. Miss X remained unhappy and complained to us.
20. The Council told us that going forward it had secured tutoring and mentoring for Y which it says is in line with what he can currently manage. It said it will review Y’s EHC Plan in the autumn term.

My findings

21. 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.
22. Following Miss X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by 9 August 2023 and then subsequently issued the final Plan by 6 September 2023.
23. The EP report should have been available to the Council by the start of July 2023 in order for it to have met the September deadline. The EP report was not complete until 23 August 2023 which was a delay of seven 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.
24. However, the delay in obtaining the EP advice was not the main reason for the significant delay in issuing the final EHC Plan. With EP advice in hand the Council should have issued Y’s final Plan by mid-October 2023. It did not do so until the end of April 2024 which is a further delay of 27 weeks which is fault.
25. In total the Council took 54 weeks to assess Y and issue his final EHC Plan instead of the 20 weeks statutory timescales. Most of this delay occurred after it received EP advice, due to backlogs and staffing issues in its SEND service.
26. The faults outlined above have caused Miss 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 him back into school. Miss X had a right of appeal to the SEN tribunal if she was unhappy with the content of Y’s EHC Plan.
27. 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.

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Agreed action

28. Within one month of the final decision the Council agreed to take the following action:
1. Pay Miss X £150 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 Ms X £500 to recognise the distress and uncertainty caused by the delay in issuing Y’s final EHC Plan after it had obtained EP advice.
3. Provide the Ombudsman with an update on its recruitment of SEND staff and case officers and explain how it intends to reduce delays in issuing final Education, Health and Care Plans after it has received Educational Psychology advice.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. 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

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Investigator's decision on behalf of the Ombudsman