Summary: We have found fault with the Council for the delays during Ms X’s daughter’s Education, Health and Care Plan process. This delayed Ms X’s appeal rights, caused avoidable distress and meant that Ms X’s daughter missed out on education and support. The Council has agreed to an apology, symbolic payments for the distress and missed provision and a service improvement to reduce the chance of this happening again.

The complaint

1. Ms X complained about delays during the Education, Health and Care (EHC) Plan process for her daughter. She said the Council has not met Y’s needs.

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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. 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)
4. 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 have and have not investigated

5. I have not investigated any matters that were included in Ms X’s appeal to Tribunal.

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How I considered this complaint

6. I have considered Ms X’s complaint and supporting information.
7. I have also considered the Council’s response to Ms X.
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

EHC Plan

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. 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

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).

Mediation

11. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal. They do not have to agree to attend mediation.

SENDIST Tribunal

12. Once the Tribunal issues a decision, the council must carry out the order within 14 weeks. Some timescales also apply when the council concedes an appeal before a final hearing (14 weeks), in this situation there may be a consent order or may be no order. We would expect complainants to use the council’s complaint process first where a council has not implemented a final order.

What happened

13. Ms X appealed the Council’s decision to refuse her request for an EHC needs assessment. Before the hearing, the Council conceded the appeal. On 26 October 2023, the Council notified Ms X that is would carry out a needs assessment for Y.
14. The Council sent out requests for information to Y’s school, an Educational Psychologist, CAMHS and other relevant bodies.
15. The Council received the majority of the information by the end of 2023, and the remaining information by April 2024.
16. Ms X complained about the delays in May 2024. The Council apologised and explained that her designated caseworker was away from work but someone else would pick up Ms X’s case.
17. The Council issued Y’s final EHC Plan on 22 July 2024. This was 39 weeks after the Council agreed to carry out a EHC needs assessment.
18. The final EHC Plan’s SEN provision included programmes and activities to support and mentor Y with her social, emotional and mental health and communication. These included weekly 1-2-1 sessions with qualified staff members and peer support social groups.

My findings

19. As required by statutory regulations, the Council should have issued Y’s final EHC Plan 14 weeks after the Council conceded Ms X’s appeal. This would have been 1 February 2024. The Council issued it on 22 July 2024, 25 weeks late.
20. In its response to Ms X’s complaint, the Council explained the delays were due to other parties not provided relevant information on time, and Y’s caseworker being away from work. However, the responsibility to deliver the EHC Plan on time lay with the Council and I have found it at fault for the delay.
21. The delay caused Ms X and Y avoidable distress and uncertainty. Y missed 25 weeks/1.5 terms of support which affected her education and general school experience. Although Y’s attendance was good, she spent a significant amount of time out of the classroom, in the school’s pastoral support unit. The delay also delayed Ms X’s right of appeal.
22. The Council has agreed to apologise to Ms X and Y and make a symbolic payment for the avoidable distress caused. The Council also agreed to make a symbolic payment in line with our guidance on remedies for the education and SEN provision Y missed as a result of the delay.

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Agreed action

23. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Ms X and Y for the delayed EHC Plan process and the avoidable distress caused.
2. Pay Ms X £300 in recognition of the distress caused.
3. Pay Ms X £1350 for the 1.5 terms of missed education and SEN provision caused by the delay.
24. Within 8 weeks of my decision, the Council has agreed to:
1. Identify learning from this complaint to ensure that a contingency plan is in place for unforeseen staff absences.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed my investigation. I have found fault with the Council for delay to Ms X’s daughter’s EHC Plan process.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman