Summary: We upheld a complaint about delay issuing Y’s final Education, Health and Care Plan. The Council will apologise and make a payment of £700 to reflect the avoidable frustration, distress and delay in appeal rights.

The complaint

1. Ms X complained the Council delayed completing the Education, Health and Care (EHC) needs assessment for her child Y, delayed issuing draft and final EHC Plans and refused to accept a private Educational Psychology (EP) advice.
2. Ms X said this caused a delay in appeal rights and avoidable distress and uncertainty.

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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 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

7. I considered the complaint to us, the Council’s response to the complaint and documents summarised in this statement.
8. Ms 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 law and guidance

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 including F (special educational provision) and I (educational placement/school). 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.

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.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
11. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).
12. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  Those consulted have a maximum of six weeks to provide the advice. 

What happened

2023

13. Ms X requested an EHC needs assessment on 22 July when Y was four and attending a special nursery. She was waiting to be assessed for autism. Information from nursey indicates Y was receiving support and educational provision tailored to her sensory and communication needs. Ms X decided Y would stay in nursery for an extra year (as she was born in May) so she would start school a year later than usual in September 2024.
14. Ms X had already commissioned an EP to assess Y before she made the request for Y’s EHC needs assessment. The EP prepared a report which had some recommendations for an EHC Plan for Y. Ms X submitted the report with her request for an assessment.
15. The Council decided to carry out an EHC needs assessment on 16 October. It referred Y to its EP service on the same day.
16. Ms X complained to the Council in November, raising similar issues as those in her complaint to us. The Council responded in December saying:
• The demand for EP reports was high and Y’s case had not been allocated to an EP yet. The estimated date for completing the EHC needs assessment was in April 2024;
• The private EP report Ms X had commissioned was not acceptable as it did not meet the Council’s quality assurance process; and
• If the private EP was willing to provide an update report within the Council’s quality framework, then the Council would allocate Y’s case to them.

2024

17. Ms X was unhappy with the Council’s response and escalated her complaint to stage two of the Council’s complaint procedure. The Council responded in March (by an emailed letter to Ms X). Ms X told me she never received a copy of this response. The response said:
• The delay was due to a shortage of EPs. It had recruited additional EPs
• The EP service would not use the private EP report as it was not commissioned by the Council and did not meet the specific purpose of fulfilling the requirements of an EHC needs assessment. The Council would not give parents any more information as it would not be professionally ethical to do so
• The Council had allocated its own EP on 12 February and they would provide statutory advice. There would be a decision about an EHC Plan by the end of April.
18. The EP’s advice was issued on 18 March.
19. The Council issued Y’s draft EHC Plan on 9 May with an accompanying letter asking for Ms X’s preferred schools and comments on the draft.
20. The Council consulted with the placement it regarded as the nearest appropriate school (a mainstream primary school), with Ms X’s three preferred schools and with three other independent special schools. The parental preferences refused Y a place; as did the other schools, apart from one of the independent schools.
21. The Council’s funding panel did not agree to fund a place at the independent school and decided to name the mainstream primary school.
22. The Council issued Y’s Final EHC Plan on 4 July. It named the mainstream primary school as Y’s education setting from September. Section F included 32.5 hours of individual or small group support (to aid Y’s transition to school). From 1 Jan 2025 this would be 25 hours.
23. Ms X appealed Sections B, F and I of Y’s EHC Plan to the SEND Tribunal. She disagreed with the mainstream setting and wants a special school. The appeal is listed for January 2025.

Information from the Council about the demand for EP services.

24. I asked the Council about its policy on using EP advices a parent has commissioned. The Council said it always considers private advice, and its principle EP uses a quality assurance framework for all advices.
25. The Council also told me:
• In the last 12 months, it had recruited three EPs and had plans to recruit five more. It was also using associate and agency EPs
• The Department of Education was monitoring the Council’s plan each month.
26. The Council’s figures for the last year show a mixed picture for the number of EHC Plans issued within 20 weeks:
• November 2023: 29%
• March 2024: 26%
• June 2024: 39%
• September 2024: 45%
• November 2024: 55%.

Findings

27. We uphold this complaint. The Council failed to adhere to the timescales in the SEND Code of Practice which was fault. In particular:
• The decision to carry out an assessment was due by 2 September, but it was not made until 16 October. It was therefore delayed by six weeks;
• The EP service received an internal referral on 16 October 2023. Their advice was due by 27 November 2023. It was not available until 18 March 2024, which was a delay of 16 weeks;
• Y’s draft EHC Plan should have been completed by 9 November at the latest, allowing 30 days for parental comments and school consultations. It was not completed till 9 May 2024. This was a delay of 26 weeks;
• Y’s final EHC Plan should have been available by 9 December (20 weeks from the date of the request for an assessment). It was not issued until 4 July 2024; which was a 30 week delay. (seven months);
28. The Council’s fault (service failure) caused avoidable distress, frustration and a delay in appeal rights. It did not cause a delay in special educational provision as Y was attending a nursery for children with SEN where she was receiving educational provision tailored to her needs and it was always the parental intention for her to start school in September 2024;
29. There is no fault in the Council’s failure to accept the private EP’s advice on the grounds that it does not fit its internal quality assurance framework. This is acceptable practice as the SEND Code requires the council to consider whether advice are sufficient for the assessment process. The Council told me it gave the private EP feedback about the advice and this was confidential to the practitioner.

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Agreed action

30. Within one month of my final decision; the Council will:
• Apologise to Ms X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make a payment of £700 to reflect the avoidable distress and delay in appeal rights caused by the seven-month delay in issuing Y’s final EHC Plan.
31. The Council should provide us with evidence it has complied with the actions.
32. I am not making any recommendations for improvements to the Council’s EP service because the Department of Education is already monitoring the Council regularly and so further improvements would be of no benefit.

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Final decision

33. We upheld a complaint about delay issuing Y’s final Education, Health and Care Plan. The Council will apologise and make a payment of £700 to reflect the avoidable frustration, distress and delay in appeal rights.
34. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman