Summary: Miss B complained that the Council delayed in completing an Education, Health and Care (EHC) needs assessment for her son, C and issuing an EHC Plan. We have found fault in the Council’s actions. It has agreed to apologise to Miss B and pay her £500.

The complaint

1. Miss B complained that Suffolk County Council (the Council), in respect of her son, C, delayed in completing the Education Health and Care (EHC) needs assessment and issuing an EHC Plan. It also failed to hold a co-production meeting to take account of Miss B’s views, issued an inaccurate EHC plan and delayed consulting with appropriate settings. This has delayed C’s access to appropriate education and support and caused Miss B significant distress and inconvenience.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. 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) 
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
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)

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How I considered this complaint

7. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.
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 found

Special educational needs

9. 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 council can do this.

EHC needs assessments

10. 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 (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.

What happened

11. Miss B’s son C has additional needs. In December 2022 Miss B asked the Council to carry out an EHC needs assessment and on 16 January 2023 she completed the formal request form with full details of C’s conditions and needs. He was under the statutory school age at this point.
12. The Council initially decided not to start an assessment and informed Miss B of this on 13 February 2023. Following mediation, the Council on 28 March 2023, agreed to carry out an assessment.
13. It obtained educational psychology advice on 22 August 2023, issued a draft EHC Plan on 6 September 2023, followed by the final EHC Plan on 3 November 2023 without a placement.
14. Following discussion with Miss B, the Council arranged an early review of C’s EHC plan in January 2024 and sought advice from a number of professionals and approached Miss B’s preferred placement (for September 2024).
15. On 7 February 2024 the Council, following mediation, issued a final amended EHC Plan naming Miss B’s preferred placement for C to attend in September 2024.
16. Between March and July 2024 Miss B had meetings, discussions and more mediation with the Council over the content and wording of the EHC Plan. She said the Council had unreasonably cancelled a co-production meeting in March 2024. The Council said Miss B had declined to attend so the meeting was cancelled but then changed her mind and it was too late for the meeting to go ahead. Miss B considers the Council ignored her communications and the meeting could have gone ahead. The Council issued several further versions of the EHC plan, the final one on 3 July 2024.
17. In response to my enquiries the Council said the delay was due to a shortage of educational psychologists (EPs) and very high volumes of requests for EHC needs assessments. It said it was taking steps to manage this problem by recruiting additional EPs and locum EPs were also supporting the process.

Analysis

18. The Council should have completed the assessment and produced a final EHC Plan by 5 June 2023. It did not do so until 3 November 2023. This was a delay of 22 weeks and was fault.
19. I acknowledge that the main cause of the delay was due to the national shortage of EPs which to a large extent is outside the Council’s control and I welcome the steps it is taking to improve the situation. I also note the Council issued a draft EHC Plan promptly, within three weeks of receiving the EP report. However, the delay is still service failure, so fault which caused injustice to Miss B and C.
20. I understand Miss B disputed the content of the EHC Plan after the review in January 2024 and was unhappy with the wording and the medical advice. However, she had a right of appeal to the SEND Tribunal about the content of the EHC Plan from the date the final ECH Plan was issued (3 November 2023). She had further rights of appeal in 2024 when the Council issued an amended final EHC Plan. So, I have not made any findings on these events.

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Agreed action

21. In recognition of the injustice cause to Miss B and C, I recommended that the Council within one month of the date of the final decision:
• apologises to Miss B in accordance with our Guidance on Remedies; and
• makes a symbolic payment to Miss B of £500.
22. The Council has agreed to my recommednations and should provide us with evidence it has complied with the above actions.

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Final decision

23. I consider this is a proportionate way of putting right the injustice caused to Mrs B and C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman