• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Miss X complains the Council has failed to issue an Education Health and Care Plan for her daughter, Y, within the statutory timescales. Miss X says this has caused her and her family distress and frustration. We have found fault in the Council's actions for failing to issue Y’s Education Health and Care Plan within the statutory timescales. The Council has agreed to apologise, issue Y’s final Education Health and Care Plan and make a financial payment.

The complaint

1. Miss X complains the Council has failed to issue an Education Health and Care (EHC) Plan for her daughter, Y, within the statutory timescales.
2. Miss X says this has caused her and her family distress and frustration.

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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. 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)
5. 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

6. I have considered the information provided by Miss X and the Council. I have also discussed the complaint with Miss X on the telephone.
7. Both Miss X and the Council provided comments on the draft decision. These have been considered before a final decision was issued.

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What I found

8. 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. 
9. 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 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 within 15 calendar days.

What happened

10. Miss X asked for an Education Health Care Needs Assessment (EHCNA) for Y on 30 March 2023. The Council acknowledged this the following day.
11. The panel decided to issue an EHC Plan for Y in July 2023.
12. Miss X complained to the Council in September 2023 and said she was unhappy with the delays in the Council issuing Y’s EHC Plan.
13. The Council responded to the complaint in October 2023 and said there had been a delay in getting the Educational Psychologist (EP) advice. The Council said the EP assessment was due the same month and it would then issue the EHC Plan within a tight timescale.
14. Miss X escalated her complaint to stage two in November 2023 and said she was still waiting for the Council to issue Y’s EHC Plan.
15. The Council responded in December 2023 and said Y’s EHC Plan should have been issued in August 2023. The Council said it would issue Y’s EHC Plan by early January 2024. The Council also explained it had put measures in place to recruit for additional staff in the EHCP team and had redirected EP’s time.
16. The Council issued a draft plan in January 2024. However, Miss X requested a specialist provision for Y. The Council say there has been a delay in consulting for this due to demand in the EHCP team.
17. I understand the Council has not yet issued a final EHC Plan for Y.

Analysis

18. 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.
19. Following Miss X’s request for an EHCNA in March 2023 the Council should have issued Y’s EHC Plan by mid-August 2023.
20. The Council have not yet issued Y’s EHC Plan which is around a 47 week delay at this point.
21. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. I accept there are reasons why the EP advice took longer than it should have. However, the Council has a duty to carry out the process within the statutory timeframes. To not do so was fault by the Council as a result of service failure.
22. This 11-month delay caused Miss X and her family distress and uncertainty and delayed their appeal rights.
23. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to recognise the avoidable distress or uncertainty caused.
24. I welcome the efforts the Council is making to resolve the issue of delays caused by the EP shortage and EHCP team, as set out in paragraph 15. I have therefore not made any service recommendations.

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Agreed action

25. Within one month of a final decision the Council should:

• Apologise to Miss X for the delays in assessing Y and issuing a final EHC Plan.
• Issue Y’s final EHC Plan.
• Pay Miss X £1,100 to recognise the distress, frustration and uncertainty caused to her and Y by the delays in issuing Y’s final EHC Plan. This is calculated at £100 per month from the point the EHC Plan should have been issued.

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

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Final decision

27. I have found fault in the actions of the Council for failing to issue Y’s EHC Plan within the statutory timescales.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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