Summary: Miss X complained the Council delayed completing her child Y’s Education, Health and Care (EHC) needs assessment in line with statutory timescales. The Council was at fault because it failed to decide whether to issue Y with an EHC Plan within the statutory timescales, caused by a delay in obtaining Educational Psychologist advice. This caused a further delay in issuing Y’s final EHC Plan. The Council should make a payment to Miss X to acknowledge the distress, frustration and uncertainty this caused her.

The complaint

1. Miss X complained the Council delayed completing her child Y’s Education, Health and Care (EHC) needs assessment in line with statutory timescales. This in turn caused a delay in issuing Y’s EHC Plan.
2. Miss X says the matter caused them distress, frustration, and uncertainty about the provision Y would receive.

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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 spoke to Miss X about her complaint and considered information she provided.
8. I considered information the Council provided.
9. Miss X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant Law and Guidance

10. 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.
11. 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 Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;

• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

12. 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.
13. 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. The appeal can be against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.

What happened

14. Miss X has a daughter Y, who started primary school in September 2024. Y has special educational needs. In December 2023, Miss X asked the Council to carry out an Education, Health and Care (EHC) needs assessment. The following month the Council agreed to carry out the assessment and requested Educational Psychologist (EP) advice. The Council should have received the EP advice by mid-February 2024 and ultimately should have issued the final EHC Plan by end of April 2024.
15. In April 2024, Miss X raised a stage one complaint as EP advice had still not been received. The Council issued a stage one complaint response the same month apologising for the delays. It attributed this to an unprecedented increase in requests for EHC needs assessments and associated EP advice.
16. Miss X then raised a stage two complaint in May 2024 once the Council had exceeded the 20-week statutory timescale to issue the final EHC Plan. The Council issued a stage two complaint response the same month apologising again.
17. The Council obtained EP advice in May 2024 and issued a draft Plan the following month. The final EHC Plan was issued in July 2024.
18. Miss X was unhappy with the Council’s handling of the matter and complained to us.

My findings

19. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
20. Following Miss X’s request for an EHC needs assessment the Council should have decided whether to issue a Plan by the start of April 2024 and then subsequently issued the final Plan by late April 2024.
21. The EP report should have been available to the Council by mid-February 2024 in order for it to have met the April deadline. The EP report was not completed until May 2024 which was a delay of approximately 12 weeks and fault. It caused a delay in the Council deciding whether to issue Y with an EHC Plan. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases. This in turn had a knock-on effect which meant the Council did not issue the final EHC Plan until July 2024. This was a delay of 10 weeks.
22. In total the Council took 30 weeks to assess Y and issue her final EHC Plan instead of the 20 weeks statutory timescales. This caused Miss X distress, frustration, and uncertainty about the provision Y would receive. However, the Council did issue Y’s final EHC Plan prior to her starting primary school so she did not miss any provision listed in the plan because of these delays.
23. We have found similar fault with the Council on a separate case. Following that case, the Council has explained what action it is taking to reduce the backlog in the EHC needs assessment process. It has also agreed to create and provide us with an action plan addressing its EP shortages. Therefore, it does not require a further service improvement.

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Agreed action

24. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise to Miss X to recognise the distress, frustration and uncertainty the delays caused her. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
2. Pay Miss X £225 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in deciding whether to issue Y with an EHC Plan caused by the delay in obtaining advice from an Educational Psychologist.

25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman