Summary: The Council failed to meet statutory timescales for carrying out an education, health and care needs assessment for Mr X’s son. In recognition of the injustice caused, the Council has agreed to apologise to Mr X and make a payment to him.

The complaint

1. Mr X complains that the Council has failed to meet the statutory timescales for carrying out an education, health and care needs assessment for his son, C. The delay caused significant uncertainty for the family and meant that the final EHC plan was not issued in time for the new school year so C has had to remain at nursery rather than starting school as planned.

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The Ombudsman’s role and powers

2. 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)
3. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
4. 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

5. I have considered all the information provided by Mr X, made enquiries of the Council and considered its comments and the documents it provided.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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

Legal and administrative background

Education, health and care plan

8. 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 

9. 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).

Advice and Information for EHC needs assessments

10. 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. 

11. Those consulted have a maximum of six weeks to provide the advice. 

Key facts

12. On 15 November 2023 Mr X requested an EHC needs assessment for his son, C.
13. On 3 January 2024 Mr X complained to the Council about the lack of progress. It responded apologising for the delay and explaining that this was due to the national shortage of EP’s.
14. On 6 February the Council advised Mr X that it would agree to undertake an assessment.
15. On 22 April Mr X escalated his complaint to stage 2 of the Council’s complaints procedure. The Council responded again apologising for the delay. It explained that it was using independent EP’s to manage the backlog of assessments but, despite this, the process was taking 40 weeks rather than the 20 weeks required.
16. Mr X was dissatisfied with the Council’s response and complained to us.
17. On 17 June the Council received the EP’s assessment report. It wrote to Mr X about next steps.
18. On 3 July the Council informed Mr X that it would issue an EHC plan.
19. On 22 July the Council sent a draft EHC plan to Mr X. He requested amendments to the plan. The plan was finalised in November following consultation with schools.

Analysis

20. We expect councils to follow the timescales set out in law and the Code which is statutory guidance. We are likely to find fault where there are significant breaches of those timescales.
21. Mr X requested an assessment on 15 November 2023. The Council was required to decide within six weeks whether to carry out an assessment and notify Mr X of its decision. The Council should have notified Mr X of its decision by 27 December but did not do so until 6 February 2024. This was a delay of six weeks. This was fault and caused Mr X frustration and uncertainty.
22. Councils must seek advice from an EP as part of the EHC needs assessment. This advice should be received within six weeks of the Council requesting it. However, the Council did not receive the EP report until 17 June 2024, a delay of 17 weeks.
23. The Council has told us it has taken steps to resolve the issues caused by the national shortage of EPs and to reduce waiting times for EHC Plans. It has an action plan in place which includes reviewing ongoing recruitment and the structure of its EP service. It also says it schools can apply for top-up funding without the need for an EHC Plan to ensure any delay in issuing a Plan does not delay the appropriate support being put in place for a child.
24. In this case, the Council instructed an independent EP to carry out the assessment to reduce the delay. However, the delay was not in line with statutory timescales and is fault.
25. After the EP report was received, the Council should have issued a final EHC Plan within eight weeks. That is, by 11 September. It did not do so until November 2024. This was a further delay. This delay was not caused by the national shortage of EP’s and was fault.
26. As a result of the Council’s failure to complete the assessment process and issue a final EHC Plan within 20 weeks, Mr X suffered distress and uncertainty and was put to time and trouble in chasing the Council to complete the statutory process. In addition, the delay meant C was unable to start school in September 2024 as planned and had to remain at nursery for an additional year. The Council apologised to Mr X for the delay. While this goes some way towards remedying the injustice caused, I made further recommendations.

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Agreed action

27. The Council has agreed that, within one month, it will:
• apologise to Mr X for the delay in deciding whether to complete an EHC needs assessment and pay him £100 in recognition of the frustration and uncertainty caused by this;
• pay Mr X a further £400 in recognition of the uncertainty, distress and frustration caused by the delay in obtaining an EP report; and
• pay Mr X £250 in recognition of the injustice caused by the delay in issuing a final EHC Plan.
28. The Council should provide us with evidence it has complied with the above actions.
29. The Council has already taken action to improve the timeliness of EHC assessments. So, I am not making service improvement recommendations in this case.

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Final decision

30. I find fault by the Council causing injustice.
31. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman