Summary: Mr X complained the Council delayed completing his son 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. The Council has agreed to make a payment to Mr X to acknowledge the distress, frustration and uncertainty this caused him.

The complaint

1. Mr X complained the Council failed to complete his son Y’s Education, Health and Care (EHC) needs assessment within statutory timescales due to a delay in obtaining Educational Psychologist (EP) advice. This in turn caused a delay in issuing Y’s EHC Plan which meant he did not receive provision for the spring and summer term.
2. This has caused him distress, frustration and uncertainty about the provision his son 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 Mr X about his complaint and considered information he provided.
8. I considered information the Council provided.
9. Mr X and the Council had an opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Relevant Law and Guidance

EHC Plans

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. Mr X has a son Y, of secondary school age. Y has special educational needs. In July 2023, Mr 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 September 2023 and ultimately it should have issued the final EHC Plan by end of November 2023.
15. The Council obtained EP advice in January 2024 and decided to issue an EHC Plan at the end of February 2024.
16. In May 2024, Mr X raised a complaint because of the delays in EHC needs assessment process. The following month the Council issued a final stage complaint response apologising for delays in completing the assessment. It attributed this to delays in obtaining EP advice and staffing issues. The Council has subsequently employed interim staff to focus solely on writing EHC Plans.
17. The Council issued Y’s final EHC Plan in July 2024. Section F outlined the specialist provision Y was entitled to which included:
1. Access to a teaching assistant or mentor to support with the following;

• Maintaining attention and concentration
• Recalling of auditory information
• Developing reading comprehension
• Accessing and managing language
• Communication and interaction skills intervention
• Preparation for any changes and transition
2. Regular timetabled learning and movement breaks;
3. Access to a safe social space at break and lunch times.

18. Mr X was unhappy with the Council’s handling of the matter and complained to us.
19. Mr X told us Y was due to start secondary school in September 2024. However, due to the delays in issuing his final EHC Plan they were unable to secure a secondary school placement for him. Therefore, Y will be repeating his final year of primary school. If Mr X is unhappy with the named primary school in the Plan, he can appeal this to the SEND tribunal.

My findings

20. 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.
21. Following Mr X’s request for an EHC needs assessment the Council should have decided whether to issue a Plan by late October 2023 and then subsequently issued the final Plan by late November 2023.
22. The EP report should have been available to the Council by late September 2023 in order for it to have met the November deadline. The EP report was not complete until January 2024 which was a delay of 14 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 28 weeks.
23. In total the Council took 48 weeks to assess Y and issue his final EHC Plan instead of the 20 weeks statutory timescale.
24. I cannot say whether the delay that occurred before the EP gave their advice in January 2024 meant Y lost out on special educational provision. This is because the EP advice reflected Y’s needs as they were in January 2024, not necessarily as they would have been but for the delay.
25. However, after the EP gave their advice, the Council took too long to finalise Y’s EHC Plan. With EP advice in hand, it should have issued the final Plan by mid-February 2024. It did not do so until mid-July which is a delay of 22 weeks and fault. This means Y would have been entitled to provision in line with the Plan from the week commencing after February half term until the end of summer term. Due to the delays Y lost the opportunity to receive this provision. This fault caused Mr X and Y distress, frustration and uncertainty about the provision Y would receive.
26. We have found similar fault with the Council on separate cases. Following this, the Council has implemented an action plan to address EP shortages and EHC needs assessment backlogs. It has also agreed to provide an update on the Council’s recruitment to its Special Educational Needs and Disability team to address its staffing shortfalls and increased demand. Therefore, I have not made any service improvement recommendations.

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Agreed action

27. Within one month of the final decision the Council agreed to take the following action:
1. Apologise to Mr X to recognise the distress, frustration and uncertainty the delays caused him. 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.
2. Pay Mr X £350 to acknowledge the distress, frustration and uncertainty caused to him 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.
3. Pay Mr X £1450 to recognise Y’s loss of opportunity to receive provision in line with his EHC Plan between February and July 2024 caused by the delay in issuing the final Plan after it had obtained EP advice.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. 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