Summary: Mr X complained the Council delayed in completing an Education, Health and Care (EHC) needs assessment for his child Y. The Council delayed in deciding whether to issue Y with an EHC plan. The Council has agreed to apologise to Mr X and make a payment to recognise the frustration caused.

The complaint

1. Mr X complained the Council delayed in completing an Education, Health and Care (EHC) needs assessment for his child, Y. He says this impacted Y’s education. He wants the Council to finish its assessment and issue a final EHC plan.

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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. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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How I considered this complaint

6. I have considered the information Mr X has provided. I have also considered information provided by the Council.
7. Mr X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Law and Guidance

Education, Health and Care Plans (EHC Plans)

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.
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.
• 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.
10. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice.

The Council’s complaint process

11. The Council operates a two-stage complaint process. It says it will usually respond to stage one and stage two complaints within 20 working days. If the issues raised are more complex, it says it will let complainants know it needs more time to respond and provide a new timescale.

What happened

12. Mr X asked the Council to carry out an Education, Health and Care (EHC) needs assessment of his child Y in November 2023. The Council accepted Mr X’s request on 18 November 2023 and then decided to carry out an assessment. This gave the Council until 9 March 2024 to decide whether to issue an EHC plan or not.
13. Mr X asked the Council for an update in March 2024. The Council told Mr X there was a delay due to a national shortage of educational psychologists. Mr X complained to the Council. In its response to Mr X’s complaint the Council reiterated the reasons for the delay.
14. Mr X continued to complain to the Council. The Council issued further responses on 19 April and 5 June 2024. It continued to explain the reasons behind the delay. Mr X complained to the Ombudsman. In response to our enquiries the Council told us the educational psychologist’s report was due on 3 October 2024. It said it would decide whether to assess Y two weeks after it received the report.

My findings

EHC Needs Assessment and Plan

15. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council accepted Mr X’s assessment request on 18 November 2023. The Council should have decided whether to issue a plan or not by 9 March 2024. The Council has still not decided whether to issue a plan. The delay stands at seven months. This is fault.
16. The Council has not met these timescales due to the national shortage of Educational Psychologists and the increased demand for EHC needs assessments. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in progressing Y’s EHC needs assessment is fault (service failure). I cannot say whether Y has missed out on special education provision because of the delay in the Educational Psychologist giving their advice. This is because the advice will reflect Y’s needs at the time of the assessment, not necessarily as it would have been when it was originally due. However, the fault has caused Mr X and Y frustration, distress and uncertainty and has delayed his right of appeal, for which I have recommended a remedy.
17. We found fault with the Council for EHC Plan delays in another recent investigation. The Council agreed to provide or produce a plan to confirm the actions it is taking to ensure EHC Plans are issued within statutory timescales. This will include what actions the Council is taking to address the delays in allocating cases to Educational Psychologists. Because the Council is already producing a plan, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

Complaint Handling

18. Following the Council’s stage one response, Mr X continued to complain to the Council. Rather than escalate Mr X’s complaint to stage two of its process, the Council sent a response repeating its stage one findings in April 2024. When Mr X remained unhappy the Council then responded at stage two of its process, but not until June 2024. This was fault. The Council’s April response understandably caused Mr X confusion over what stage of the complaint process he was at and when to expect a response.

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Agreed action

19. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise to Mr X for its delay in deciding whether to issue Y with an EHC Plan and for the frustration caused by its inconsistent complaint response. 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.
2. Pay Mr X £700 to recognise the avoidable distress and frustration caused by the seven-month delay in deciding whether to issue Y’s EHC Plan. It should continue to pay him £100 a month until it makes a decision.
20. The Council should provide us with evidence it has complied with the above actions.

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Final decision

21. I have completed my investigation and found fault with the Council causing injustice, which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman