Summary: Mr X complained the Council delayed completing his daughter 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 apologise and make a payment to Mr X to acknowledge Y’s lost provision and the distress, frustration and uncertainty this caused him.

The complaint

1. Mr X complained the Council failed to complete his daughter 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 she did not receive provision for the summer term.
2. This has caused Mr X distress, frustration and uncertainty about the provision his daughter 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 considered information Mr X provided.
8. I considered information the Council provided.
9. Mr 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

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. 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 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.
13. Where the SEND Tribunal requires the council to make an assessment or reassessment, the council must notify the parents that it will make an assessment (notification starts the process) within two weeks. Following the assessment or re-assessment:
• if the council decides not to issue an EHC plan, they must notify the parent or young person within 10 weeks of the SEND Tribunal order; and
• if the council decides to issue an EHC plan they must issue the finalised EHC plan within 14 weeks of the SEND Tribunal order.

What happened

14. Mr X has a daughter of primary 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.
15. The Council initially refused to carry out the assessment. Therefore, Mr X appealed the decision to the SEND tribunal. In January 2024, the tribunal ordered the Council to carry out the EHC needs assessment.
16. The Council notified Mr X it would be carrying out an assessment in January 2024 and requested Educational Psychologist (EP) advice. The Council should have received the EP advice by February 2024 and ultimately it should have issued the final EHC Plan by early April 2024. However, EP advice was not received until March 2024 and it did not decide whether to issue Y with a plan within the 10 week timescale.
17. In June 2024, Mr X raised a complaint with the Council about the delays in completing Y’s EHC need assessment. The Council issued a final stage complaint response the following month. The Council said the last piece of advice required for the EHC needs assessment was received in March 2024 and the decision to issue Y with an EHC Plan was made in late April 2024. The Council said there has been an unprecedented demand for EHC needs assessments and EPs are working at full capacity. It also said there has been a delay in writing draft EHC Plans due to staffing challenges, so it has been working urgently to recruit more officers.
18. Mr X remained dissatisfied with the Council’s handling of the matter and complained to us.
19. Since complaining to us, the Council issued Y’s final EHC Plan in July 2024. Mr X has not made an appeal to the SEND tribunal regarding the content of the EHC Plan. Section F outlined the specialist provision Y was entitled to which included:
• Adult input on a 1:1 basis for Y to meaningfully engage in learning activities
• Alternative methods to writing such as use of a laptop. If using a laptop, touch-typing programme and adult oversight required
• Trusted adult with relevant skills and knowledge to deliver work around social communication and interaction skills weekly
• Trusted adult with relevant skills and knowledge to develop Y’s skills around emotions weekly
• Access to a safe space in school to support emotional regulation
• School staff to provide high levels of predictability and consistency to help Y feel safe such as advance warnings of any changes
• Key adult required at school to provide three 10-minute daily check-ins
• Regular breaks

My Findings

20. Following the SEND tribunal ordering the Council to carry out an EHC needs assessment, it had to follow the statutory timescales set out in the law and the code. Therefore, the Council should have decided whether to issue a Plan by mid-March 2024 and then issued the final Plan early April 2024.
21. The EP advice should have been available to the Council by February 2024 in order for it to have met the April deadline. The EP report was not completed until March 2024 which was a delay of three weeks and fault. It caused a five week 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 late July 2024.
22. 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 April 2024. It did not do so until late July 2024 which is a delay of approximately 15 weeks which was fault.
23. In total the Council took 35 weeks to assess Y and issue her final EHC Plan instead of the 20 weeks statutory timescales. Had the Council issued Y’s EHC Plan in line with statutory timescales, she would have had that plan in place from April 2024. This means she would have been entitled to provision in line with the Plan for the 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. It also delayed Mr X’s appeal rights.
24. 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 ensure EHC Plans are issued within statutory timescales including updates on its recruitment of Special Educational Needs and Disability staff and case officers. Therefore, it does not require a further service improvement.

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Agreed action

25. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise to Mr X to recognise the distress, frustration and uncertainty the delays caused to him. 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.
2. Pay Mr X £100 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 £900 to recognise Y’s loss of opportunity to receive provision in line with her EHC plan between April and July 2024 caused by the delay in issuing the final Plan after it had obtained EP advice.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have completed this investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman