Summary: Miss X complained about the Council’s delay completing her child, Y’s Education, Health and Care needs assessment. We find fault, causing injustice to Y and avoidable distress and uncertainty to Miss X. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complained the Council delayed completing her child, Y’s Education, Health and Care (EHC) Plan.
2. Miss X also complained the Council failed to conduct a full assessment of Y’s needs.
3. Miss X says this meant Y was in the wrong school from September 2023 and missed out on learning. She says the matter caused her distress and uncertainty.
4. Miss X wants the Council to name the school she has requested in the EHC Plan, review the remedy, and explain how it came to offer her £600.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
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 have and have not investigated

9. 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.
10. In this case, Miss X appealed to the SEND Tribunal against the placement named, the special educational provision, and description of special educational needs in the final EHC Plan issued in March 2024. So, for the reasons explained above, I have not investigated these areas of her complaint.
11. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started. I have investigated Miss X’s complaint about the delays with the EHC needs assessment process.

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How I considered this complaint

12. I spoke to Miss X and considered the information she provided.
13. I made written enquiries of the Council and considered its response along with relevant law and guidance.
14. I referred to the Ombudsman Guidance on Remedies, (a copy of which can be found on our website).
15. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation

16. 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).

What happened

17. In May 2023, Miss X requested a EHC needs assessment for her son, Y.
18. In March 2024, Miss X complained to the Council as she had not received a final Plan for Y. The statutory timescale had been missed.
19. In March 2024, the Council issued Y’s final EHC Plan. The plan named Y’s mainstream school as their educational placement.
20. In April 2024, the Council responded to the complaint, apologised for the delay, and explained the SEND service is under unprecedented demand. The Council upheld the complaint and told Miss X it had hired more EHC coordinators to address the delays. In response, Miss X requested a review of remedy, as one had not been considered or offered to her.
21. In May 2024, the Council responded. It apologised again for the six-month delay and offered Miss X a £600 symbolic payment.

My findings

22. The Council has accepted it did not complete the EHC needs assessment and issue the final EHC Plan within the statutory timescales.
23. Y’s EHC Plan should have been issued within 20 weeks of Miss X’s request for assessment in May 2023, so in October 2023. It was not issued until April 2024, a delay of six months. This delay is fault.
24. The delay postponed Miss X’s right of appeal to the SEND Tribunal and caused avoidable distress and uncertainty. The delay has also impacted Y’s education. Y has missed out on the special educational needs provision set out in the final EHC Plan because of the six month delay in completing the assessment and issuing the plan. I do not find the delay caused Y to be in the wrong school from September 2023, since the final plan was not due until October 2023. Therefore, it is likely Y would have always started attending the school in September.
25. In recognition of the injustice caused by the fault, the Council offered Miss X £600 to be used for Y’s educational or emotional benefit. The Council has since confirmed the remedy was calculated in line with our guidance of £100 per month for the delay in issuing a EHC Plan. This guidance is for remedying cases where there is a delay because of a lack of Educational Psychologists to complete the required statutory advice. This is not the cause for delay in this case.
26. I have considered whether the Council’s remedy is in line with the expectations in our Guidance on Remedies. In my view, the Council has considered the delay issuing the EHC Plan, but not the impact of the delay for the additional special educational needs provision. In line with our guidance and taking into consideration Y was attending school and receiving an education at that time, I consider an increased remedy is appropriate.

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Agreed action

27. To remedy the injustice caused by the faults the Council has accepted, within four weeks of the date of my final decision, the Council has agreed to:
• apologise to Miss X in line with our guidance on Making an effective apology;
• pay Miss X £750 in recognition of the loss of educational support; and
• pay Miss X £150 in recognition of the distress and uncertainty.
28. The agreed payments are instead of the remedy the Council originally offered.
29. I have not recommended any action for the Council to take to improve its services. This is because in April 2024, the Council assured the Ombudsman of the actions it is taking to address delays within its SEND team. We are waiting to see the result of this.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have completed my investigation. There was fault by the Council. The Council has agreed to the above action as a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman