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 timescales, caused by a 15 week delay in obtaining Educational Psychologist (EP) advice. It then further delayed issuing Y’s final EHC Plan by 18 weeks after it received the EP advice and failed to respond to Miss X’s request for mediation. This caused Miss X distress, uncertainty and delayed her right of appeal to the SEND tribunal. It agreed to make payments to acknowledge this injustice.

The complaint

1. Miss X complained the Council delayed completing her son, Y’s Education, Health and Care (EHC) needs assessment which caused a further delay in issuing his final EHC Plan.
2. Miss said this has impacted on Y’s education and caused distress, uncertainty and delayed her right of appeal to the SEND tribunal.

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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 the Council’s response to my enquiry letter.
9. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website.
10. Miss X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

11. 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.
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 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.

13. 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.
14. 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.

Mediation

15. Rights to mediation are set out in the Children and Families Act (CFA) 2014. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal. They do not have to agree to attend mediation.
16. If a child’s parent or the young person wishes to discuss education issues such as a decision not to issue an EHC Plan the council must arrange for mediation within 30 days from the date the parent or young person told it they wanted mediation.

What happened

17. Miss X has a son, Y who is of primary school age with special educational needs with a diagnosis of autism. He attended a mainstream primary school during 2023 but started having difficulties with social situations and relationships with his teachers and peers.
18. At the end of May 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 mid-September 2023. That being the case the Council should then have issued Y’s final EHC Plan by 12 October 2023.
19. As part of the EHC needs assessment the Council requested advice from an Educational Psychologist (EP) in July 2023. The EP provided advice at the end of November 2023 which was a delay of 15 weeks.
20. The Council issued its decision to issue Y with an EHC Plan at the start of February 2024.
21. Miss X complained to the Council in March 2024 about the delay in completing the EHC needs assessment and the delay in issuing Y with an EHC Plan. She raised concerns about the lack of support and that Y was struggling at school on a daily basis. Y was on a part-time timetable.
22. The Council responded to Miss X’s complaint a few days later and apologised for the delays in completing Y’s EHC needs assessment. It said the delays were down to an unprecedented number of EHC needs assessment requests over the last 18 months, causing a backlog. It said in addition there was a national and local shortage of EPs to meet the increased demand. The Council outlined steps it was taking to address these issues including ongoing recruitment of EPs and SEND as well as using agency staff in the interim to resolve staffing issues.
23. The Council issued Y’s draft Plan in mid-March 2024. It issued Y’s final EHC Plan on 31 May 2024 naming Y’s current mainstream primary school as his placement. This was 33 weeks outside the statutory timescales. The letter to Miss X included information about mediation and her right of appeal to the SEND tribunal.
24. Records show Miss X requested mediation the same day she received the final Plan. The mediation company sent the request to the Council the following day suggesting a meeting date. Internal email records show this was forwarded to Y’s case officer asking them to respond to the request. The Council told us that the case officer missed the email due to being on leave and nobody else had oversight. Therefore the Council failed to respond to mediation.
25. Miss X appealed to the SEND tribunal at the start of August 2024 against the content, specified provision and the named placement in Y’s EHC Plan.
26. Miss X remained unhappy and complained to us.

My findings

27. 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.
28. Following Miss X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by mid-September 2023 and then subsequently issued the final Plan by 12 October 2023.
29. The EP report should have been available to the Council by mid-August 2023 in order for it to have met the October deadline. The EP report was not complete until the end of November 2023 which was a delay of 15 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.
30. 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 end of January 2024. It did not do so until 31 May 2024 which is a further delay of 18 weeks which is fault.
31. In total the Council took 53 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.
32. After issuing Y’s EHC Plan Miss X requested mediation. The Council failed to respond to the mediation company or arrange mediation within the 30 day timescale set out in law. That was fault, caused by the case officer being on leave.
33. The faults outlined above have impacted on Y’s education and caused Miss X distress, uncertainty and delayed her right of appeal to the SEND tribunal which she has now used. The Council’s failure to respond to and arrange mediation caused frustration and was a missed opportunity to try and resolve some of Miss X’s concerns. But for the faults and with an EHC Plan in place earlier, Y would have had earlier access to the provision in the Plan. It leaves uncertainty around whether Y could have accessed more education with support in place.
34. 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. I have therefore not recommended any further service improvements.

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Agreed action

35. Within one month of the final decision the Council agreed to take the following action:
1. Pay Miss X £350 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 Miss X £500 to acknowledge the distress, uncertainty, delayed appeal rights and the impact on Y’s education caused by the delay in issuing Y’s final EHC Plan after it received EP advice and failing to respond to the mediation request.
3. Review how it manages and has oversight of Education, Health and Care Plan mediation requests to ensure they are responded to within the timescales set out in law.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. 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