Summary: Miss Y complained that delays in the Education, Health and Care (EHC) assessment and planning process meant that her son did not receive the education he was entitled to. The delays were, in part, caused by a shortage of Educational Psychologists. The Council has agreed to pay £400 to Miss Y in recognition of the delay and a further £900 for D’s benefit. The Council will also arrange the proposed catch-up provision and explain the steps it is taking to improve the timeliness of EHC needs assessments.

The complaint

1. Miss Y complains the Council did not meet its duty to ensure that her son, D, received appropriate education when he stopped attending secondary school. She also says that delays in the EHC process further impacted on her son’s ability to access the provision he was entitled to.
2. Miss Y says the Council’s failures have significantly impacted D who was in Year 11 at the time of the matters complained about.

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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. 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)
4. 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)
5. 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. (Local Government Act 1974, section 26(6)(a), 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)

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How I considered this complaint

7. I considered evidence provided by Miss Y and the Council as well as relevant law, policy and guidance.
8. The Council and Miss Y had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
9. 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

Relevant legislation and guidance

EHC assessments and plans

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. 
• 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).

11. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

Section 19 of the Education Act

12. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. We refer to this as Section 19 or alternative education provision. This applies to all children of compulsory school age living in the local council area, whether they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

Summary of key events relevant to the complaint

13. Miss Y made a request for the Council to assess D for an EHC plan on 27 July 2023 and at the end of school Year 10. The Council agreed to assess D in September. It received the Educational Psychologist’s (EP) report on 18 April 2024, issued the first draft EHC plan on 3 July 2024 and the final EHC plan on 25 July 2024. From this point, Miss Y had a right of appeal against the provision named in the plan.
14. In the meantime, D remained on roll at a mainstream secondary school but struggled to attend. Miss Y told the Council that: “[D] has been enrolled with 2 alternative learning provisions during the second half of year 10 [names removed]. His attendance has been sporadic, and he has struggled to attend”.
15. Prior to this, the school requested additional funding from the Council, but said D had become increasingly disengaged with learning and by December 2022 his attendance was just 33%. The school placed D onto a reduced timetable around this time which it said helped him to engage more positively.
16. Records show Miss Y contacted the Council on 21 September 2023 to confirm that D was receiving only three afternoon sessions per week at the alternative provision arranged by his school. She said this was not enough.
17. The Council made enquiries with the school. It confirmed the following arrangements for D:
• Mentoring support for three sessions a week from June 2023. This was to help support D with his anxiety.
• College placement to study a vocational subject, such as plastering, from June 2023. The school told the Council that Miss Y waited until November 2023 to accept the placement, at which point the place was no longer available.
18. From September 2024, Miss Y secured a college placement for D. However, the records show that: “[D] has not made it to college and has been too anxious about travelling and attending”. The Council spoke with D’s mentor to arrange a continuation of the provision with “high level of one to one bespoke support that works on confidence with a long term experienced and trusted professional” and with “a specific focus on Maths and English delivered in a non-formal way”.
19. Miss Y complained to the Council about the delays and the impact on D’s education. The Council responded to the complaint and acknowledged there was delay caused by a shortage of EPs. In the meantime, the Council said D’s school remained responsible for delivering his education. It said the school had offered a range of alternative provision, but not all of this was accepted.
20. Dissatisfied with the response, Miss Y complained at the second and final stage of the complaints procedure. The Council again acknowledged the delay in the EHC process which it said was due to EP shortages, team capacity and workload. The Council also accepted that it delayed when responding to Miss Y’s first complaint and the officer failed to sign the complaint letter. To remedy the time and trouble caused by delays in the EHC assessment process, as well as the complaint handling, the Council offered to make a total remedy payment of £400.
21. Miss Y expressed her view that the payment offered did not go far enough in recognising the impact of D’s missed provision.

Was there fault in the Council’s actions causing injustice?

22. In September 2023 Miss Y told the Council that D had stopped attending school at the end of the previous school year and was instead accessing some part-time alternative provision arranged by the school. D was in Year 11. When D stopped attending school, he did not have an EHC plan, and the standard Section 19 duties therefore applied. In response to our enquiries, the Council explained:

“Due to [D’s] Special Educational Needs and Ms [Y’s] reference to [D] being overwhelmed, the Local Authority were satisfied that provision in place was what [D] could manage at this point in time. As evidenced through case notes the local authority kept in contact with school offering support and arrangements were made for [D] whilst the statutory assessment was underway”

23. The records show consistent contact between the Council and D’s school regarding the EHC needs assessment in the Autumn term of 2023. The Council also made some enquiries about the type and quantity of alternative provision in place. While the Council has retrospectively explained that a part-time offer was suitable for D, I have seen no contemporaneous evidence to show how the Council decided in Autumn 2023 that the hours of provision arranged for D were adequate and met his needs. This is fault. The fault caused injustice to D because it is not possible to say, on balance, whether D would have been able to access more hours of education had the Council acted without fault. In these circumstances, we recommend a payment for the uncertainty caused.
24. In response to our enquiries the Council acknowledged that delays in the EHC needs assessment and planning process meant that D did not receive specialist provision when he should have done and by December 2023. The Council has proposed the following action to remedy the injustice D experienced from fault.
• Increase D’s current English and Maths tuition by one hour a week for each subject. The increase will be guided by D, his parents and those working with him.
• Extend the current offer of provision during the summer break (July and August 2025). The increase will be guided by D, his parents and those working with him.
25. For delay caused by EP shortages, the LGSCO’s guidance says: “The remedy would generally be £100 for each month outside the statutory timescales which continues up to the point the person affected receives a right of appeal, reference or review - whether this is via a refusal to issue a plan or the issuing of a final plan. The £100 a month is a symbolic payment to recognise the frustration and uncertainty caused to the family by the delay”
26. When delay is caused by a combination of EP shortages and general workload pressure, our guidance says we should set out the remedy in two periods: firstly, for the delay caused by EP shortages and secondly the period of delay between the issuing of the EP report and the final EHC Plan.

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Action

27. Within one month of this final decision, the Council has agreed to provide evidence showing it has:
• Paid £300 to Miss Y for D’s benefit. This is in recognition of the uncertainty caused by the failure to properly consider its Section 19 duties between September and December 2023.
• Paid Miss Y £400 to recognise the uncertainty, avoidable distress and frustration caused by the delay in obtaining advice from an EP between 23 December 2023 and 18 April 2024.
• Paid £500 to Miss Y for D’s benefit. This is in recognition of the lost opportunity for D to receive provision in line with their EHC plan between April and July 2024. This was due to delay in the Council issuing the final plan after obtaining EP advice. This amount is based on the Ombudsman’s suggested scale of a maximum £2300 for total loss of provision for a whole school term. We have taken into account that D was in Year 11 but received some partial provision during the period of fault and that the Council has further proposed some additional ‘catch-up’ provision.
• Paid £100 to Miss Y to remedy the time, trouble and frustration caused by the fault in the Council’s handling of her complaint.
• Discussed D’s proposed catch-up provision with Miss Y. The quantity proposed by the Council in response to our enquiries is suitable once supplemented with the financial remedy above. The Council should carefully plan the delivery of any additional provision to be in D’s best interests.
28. Within three months of my final decision, the Council will also:
• Provide evidence to the Ombudsman of the service improvements it is making to improve the timeliness of EHC needs assessments. This could include an update regarding the recruitment of Educational Psychologists and SEND staff, any improvements to internal processes or departmental changes.

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Decision

29. I find fault causing injustice for the reasons explained in this statement. The actions listed in the section above will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman