Summary: Miss X complained the Council delayed issuing her child Y’s Education, Health and Care (EHC) Plan within the statutory timescales. The Council was at fault for delay in finalising Y’s EHC Plan. The Council has already apologised for the delay. The Council will also make a symbolic payment to Miss X for the frustration, uncertainty and distress the delays caused. The Council has already put in place an action plan to improve its service.

The complaint

1. Miss X complained the Council delayed issuing her child, Y’s, Education, Health and Care (EHC) Plan within the statutory timescales.
2. As a result, Miss X said she had been put to unnecessary time and trouble pursuing the Council and was caused distress.

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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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

7. I considered:
• the information Miss X provided and spoke to her about the complaint;
• the information the Council provided;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care (EHC) Plan

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 the council can do this.

Timescales and process for EHC assessment

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.
• a council should decide if it will issue an EHC Plan within 16 weeks of the request for an assessment;
• 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.
11. 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.
12. The council should consider, with the child’s parent and the parties listed, the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47).
13. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right only arises once a decision not to assess, issue or amend a Plan has been made and sent to the parent or a final EHC Plan has been issued.

What happened

14. Y has special educational needs. Y attended a nursery part-time and required one to one support.
15. In early November 2023 Y’s nursery asked the Council to carry out an Education, Health and Care (EHC) needs assessment for Y. The Council acknowledged the request in a letter to Miss X, Y’s mother, in mid-November 2023.
16. In late November 2023 the Council wrote to Miss X and agreed to complete an EHC needs assessment for Y. The Council’s letter to Miss X said it had contacted all the relevant professionals to ask for EHC needs assessment information about Y.
17. Between late January 2024 and late March 2024 Miss X emailed the Council three times asking for an update on Y’s EHC needs assessment and if a date had been arranged for the educational psychologist (EP) assessment. The Council responded to each of Miss X’s emails to let her know it was unable to provide a date for the EP assessment and suggested she contacted the EP service.
18. In mid-May 2024 Miss X complained to the Council. She said the Council had breached its 20-week statutory timescale and Y’s EHC Plan should have been issued by late March 2024. Miss X explained Y was due to start primary school in September 2024 and they did not have an EHC Plan in place so she would have to leave her career to care for Y, causing financial hardship. Miss X acknowledged the lack of EP’s but asked for Y’s EP assessment to be completed.
19. In late May 2024 the Council responded to Miss X’s stage 1 complaint and apologised for Y’s delayed EHC needs assessment. The Council said it was facing unprecedented demand for EP advice on EHC needs assessments. It recognised the shortage of EPs was a national issue. It said it was commissioning all available EPs and was working through a backlog and would be in touch as soon as an EP was assigned to Y.
20. The same day the EP service told Miss X, Y had been assigned an EP to undertake their assessment.
21. Four days later Miss X remained dissatisfied and escalated her complaint to stage 2 of the Council’s complaints process. In early June 2024 Miss X complained to us.
22. In early July 2024 an EP assessment of Y was undertaken. In late July 2024, having received the EP report, the Council sent Miss X a decision letter saying it would issue Y with an EHC Plan. The Council issued Y’s draft EHC Plan.
23. In late August 2024 the Council sent Miss X its stage 2 complaint response. It said it was aware of the EHC needs assessment statutory timescales and it was failing to discharge those duties. It said it was beyond the Council’s control but it was making every effort to overcome the issues. It apologised for the delay in Y’s EP assessment.
24. The Council considered school placements for Y and in late October 2024 the Council issued Y’s final EHC Plan. The Plan named a special school, School 1 in Section I. Y started to attend School 1 in mid-November 2024.

My findings

25. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
26. The Council decided to carry out an EHC needs assessment for Y and made the decision within six weeks of the request. This was within the statutory timescale and was not fault.
27. To be in line with statutory timescales the Council should have decided within 16 weeks whether to issue Y with an EHC Plan, by late February 2024. The Council sent Miss X its decision to issue Y with an EHC Plan in late July 2024, this was a delay of five months. The delay was caused by a shortage of Educational Psychologists and was service failure.
28. Once the Council received Y’s EP report in July 2024 it should have issued Y’s final EHC Plan within six to eight weeks. The Council issued Y’s final EHC Plan in late October 2024, some of this delay was because the Council was arranging a suitable school place for Y and it was the school summer holidays, however this further delay was fault.
29. The whole process from the EHC needs assessment request to issuing Y’s final EHC Plan should have taken no more than 20 weeks and should have been completed by late March 2024. There was an overall delay of seven months. It caused Miss X frustration, uncertainty and distress about whether Y would have received support sooner. It also meant Miss X’s appeal rights were delayed. The Council has already apologised to Miss X for the delays in the EHC needs assessment process.
30. The Ombudsman has already made service improvement recommendations to this Council on similar cases. As a result of earlier complaints to us, the Council has agreed to provide us with an action plan to reduce delays in the EHC Plan process. On this basis no further service improvement recommendations were needed.

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Action

31. Within one month of the final decision the Council will pay Miss X a total of £700 to acknowledge the frustration, uncertainty and distress caused to her by the Council’s failure to issue Y’s final EHC Plan in line with statutory timescales.
32. The Council will provide us with evidence it has complied with the above action.

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Decision

33. I have completed my investigation finding fault and injustice. The Council has agreed to take action to remedy the injustice. The Council has already apologised and put in place an action plan to improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman