Summary: Miss Y complained the Council failed to complete an Education Health and Care assessment for her child, Z, within legal timescales, which caused unnecessary frustration and uncertainty. We found there was fault which caused injustice. The Council has agreed to make a symbolic payment to Miss Y to reflect the injustice caused.

The complaint

1. Miss Y complains about delays in the Council’s Education, Health and Care (EHC) assessment for her child, Z, when she requested it on 24 August 2023. Miss Y complains, in particular, the Council:

• Did not meet the six-week deadline for deciding whether it would conduct an EHC assessment.
• Did not meet the subsequent twenty-week deadline for issuing a draft, and then final, EHC Plan.
• Had unacceptably poor communication with her about the delay.

2. Miss Y says the failures caused a negative impact on Z’s education and emotional wellbeing, and caused her distress and frustration in trying to resolve the matter.

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The Ombudsman’s role and powers

3. 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)
4. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. We must also consider whether any fault has had an adverse impact on the person making the complaint. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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)
7. 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

8. I spoke to Miss Y about her complaint and considered the information she sent.
9. I considered the Council’s comments about the complaint and the supporting documents it provided.
10. Miss Y 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

What should have happened

11. 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.
12. 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);  
• 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.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

13. 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). 
14. The Council’s complaint process says it aims to acknowledge stage one complaints within five working days, and provide a full written response within 10 working days. It aims to acknowledge stage two complaints within five working days and provide a full written response within 20 working days. It says it will let the complainant know when to expect a response if there is a delay in either stage one or two.

What did happen

15. On 24 August 2023 Miss Y requested an EHC assessment for Z. From that date the Council had six weeks (until 5 October 2023) to decide whether to carry out an assessment and notify Miss Y. If it ultimately decided to carry out an assessment and issue an EHC Plan, it had 20 weeks from the request (until 11 January 2024) to issue the final EHC Plan.
16. On 31 August 2023 the Council emailed Miss Y and acknowledged her EHC assessment request. The email said “The request will be processed shortly, we would like to make you aware that we are currently experiencing a high volume of applications at the moment, which may have an impact on our timescale – for which we apologise.”
17. The Council did not meet the six-week deadline of 5 October 2023 to notify Miss Y of its decision. The date passed without contact.
18. On 11 October 2023 Miss Y wrote a formal ‘stage one complaint’ to the Council. She complained the Council had failed to notify her whether or not it would do an EHC assessment within six weeks of receiving her request.
19. On 6 November 2023 the Council responded to Miss Y’s stage one complaint. It said a case officer had been allocated on 6 October 2023. It explained it was currently experiencing delays in processing EHC Plan applications, and in particular there were delays in EP assessments. It apologised for the delays and said it would seek to ensure the case was heard at a panel, which would decide whether to do an assessment, in November 2023.
20. In November 2023 the Council sought information from all the relevant professionals that would be needed for an EHC needs assessment, including the EP service.
21. On 11 December 2023 the Council’s panel discussed Miss Y’s request and decided to carry out an EHC assessment. On 14 December 2023 the Council wrote to Miss Y and notified her of its decision. This was 16 weeks after Miss Y had first requested an EHC assessment.
22. The Council told Miss Y it provisionally booked a second panel hearing on 28 February 2024 to decide whether it would issue an EHC Plan. However, the Council told Miss Y the panel would need the EP report first. It said there was a current unprecedented delay for EP reports of more than 16 weeks. It told Miss Y the panel would need to be deferred if the EP report was not received in time.
23. On 9 February 2024 Miss Y wrote a formal ‘stage 2 complaint’ to the Council. She noted there was a provisional date for a second panel hearing later in February. However, she had been told this was unlikely to go ahead due to the delay for the EP report. She complained the delay was having significant negative impacts on Z’s education, socialisation and wellbeing.
24. On 1 March 2024 the Council responded to Miss Y’s stage 2 complaint. It upheld Miss Y’s complaint about the delay to the process and apologised. It said Z’s case was in a queue waiting to be allocated to an EP for assessment in April 2024. Also on 1 March 2024 the Council case worker emailed Miss Y, explained the EP shortage was causing a delay and apologised.
25. On 9 July 2024 Miss Y chased up an update on the EP timescale with the Council. The Council apologised and said it had not received an update from the EP service yet.
26. In July 2024 a senior officer at the Council with a responsibility for the EP service provided information about the ongoing delay. They apologised and said it was due to an increase in demand and staffing difficulties. The Council’s standard message had been updated to reflect a longer wait. They said they hoped to get Z’s case allocated to an available EP by September or October.
27. Z was seen and assessed by an EP in August 2024. At the time of writing this decision statement in October 2024, Miss Y had been told by the Council that they have decided to issue an EHC Plan. The Council told Miss Y she could look at possible schools for Z. However, the Council said there are additional delays to the process of issuing a draft plan, and therefore delays to the final EHC Plan. Miss Y said this has caused delays in arranging a school place for Z.
28. The Council has told us it is taken steps to resolve the issues caused by the national shortage of EPs and to reduce waiting times for EHC Plans. It has an action plan in place which includes reviewing ongoing recruitment and the structure of its EP service. It also says it schools can apply for top up funding without the need for an EHC Plan to ensure any delay in issuing a Plan does not delay the appropriate support being put in place for a child.

Analysis

Process for carrying out EHC assessments and producing EHC Plans

29. 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.
30. The request for an assessment for Z was made on 24 August 2023. The Council notified Miss Y of its decision to conduct an EHC needs assessment on 14 December 2023. The Code timescale for providing the decision to the parent is six weeks, however the Council took 16 weeks. This was not in line with the timescale and was fault. The delay caused Miss Y distress and frustration.
31. Councils must seek EP advice as part of an EHC assessment. This should be received within six weeks of the council requesting it. In this case, it should have been received in late January 2024. Z was not seen by an EP until August 2024, approximately 30 weeks after it was requested.
32. This delay was the primary reason the Council failed to complete Z’s EHC Plan within 20 weeks required by the Code. This was not in line with the timescale and so was fault.
33. The Council is responsible for the commissioning and delivery of the EP advice and information. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. Therefore, although I accept the primary reason for the EHC Plan delay was outside the Council’s control, it is still fault. I find this is service failure as I have set out in paragraph four above, which has caused Miss Y and Z uncertainty and frustration.
34. The Council has recently agreed to complete an action plan that includes actions to improve the timeliness of EHC Plans and reduce waiting times for EPs. Therefore, I am not making service improvement recommendations in this case.
35. The Council has apologised to Miss Y for the delay in making its initial decision to conduct and EHC assessment. It has also apologised for the delay in obtaining an EP report and completing the EHC assessment process.

Communication

36. Miss Y has regularly contacted the Council to seek updates and raise concerns. From October 2023 onwards there has been a named case officer allocated to Miss Y’s case. The case officer has responded to Miss Y’s emails in a timely manner.
37. The Council did not:

• tell Miss Y it was going to miss the deadline for deciding whether to conduct an EHC assessment in October 2023.
• meet its 10-day target for answering Miss Y’s stage 1 complaint. It took 8 days longer than it should have.
• provide an accurate timescale for the delay in obtaining an EP report.

38. I find the Council at fault for not telling Miss Y it was going to miss the first deadline in October 2023, and for taking longer than 10 days to answer her stage 1 complaint in November 2023. This caused Miss Y frustration and disappointment.
39. I do not find the Council at fault for not communicating an accurate timescale for the delay in obtaining an EP report. It communicated a minimum delay of 16 weeks in December 2023. The final delay was significantly longer than this stated minimum. However, the Council kept in touch with Miss Y during the process. The evidence indicates the Council could not provide an accurate timescale because of the staffing issues. Therefore, it was not a communication failure. This is separate from, and does not reduce, the negative impacts of the delay itself on Miss Y and Z.

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Agreed action

40. Within two months of the final decision the Council will:

• complete the assessment and issue the final EHC Plan.

41. Within four weeks of issuing the final EHC Plan the Council will:

• apologise to Miss Y.
• pay Miss Y £100 for every month the EHC Plan is delayed from 11 January 2024 to acknowledge the distress, frustration and uncertainty caused by the council’s failure to issue the final EHC Plan in line with statutory timescales. The ongoing element of this payment is limited to six months from the date of this decision. If the delay continues beyond six months Miss Y would have to make a new complaint for us to consider. This is in line with our guidance on remedies.

42. The Council should provide us with evidence it has complied with the above actions.

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Draft decision

43. Subject to further comments by Miss Y and the Council, and if the Council agrees to the recommended actions, I intend to complete my investigation. I propose to find the Council at fault and this caused injustice

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman