Summary: Mrs X complained the Council delayed completing her child 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. This caused a further delay in issuing Y’s final EHC Plan. The Council agreed to make a payment to Mrs X to acknowledge the distress, frustration and uncertainty this caused her.

The complaint

1. Mrs X complained the Council delayed completing her child Y’s Education, Health and Care (EHC) needs assessment in line with statutory timescales. This in turn caused a delay in issuing Y’s EHC Plan. Mrs X also complained the Council has not found Y a school placement and is having to pay to keep Y in nursery as a result.
2. Mrs X says the matter caused them distress, frustration, and uncertainty about the provision Y would receive.

Back to top

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 an injustice, 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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. It also handles appeals against discrimination by schools or councils due to a child's disability. We refer to it as the SEND Tribunal in this decision statement.
6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
9. 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)

Back to top

What I have and have not investigated

10. I have not investigated the part of Mrs X’s complaint regarding Y’s school placement and the nursery fees. This is because Mrs X used her right of appeal to the SEND tribunal about these matters. For the reasons explained in paragraphs 4-6, we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal.

Back to top

How I considered this complaint

11. I considered information Mrs X provided.
12. I considered information the Council provided.
13. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

Back to top

What I found

Relevant Law and Guidance

14. 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.
15. 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.

16. 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.

What happened

17. Mrs X has a son Y, who is of primary school age. Y has special educational needs. In February 2023, Mrs X asked the Council to carry out an Education Health and Care (EHC) needs assessment.
18. The Council initially refused to carry out the assessment. Therefore, Mrs X appealed the decision to the SEND tribunal. The Council conceded the appeal and decided to carry out the EHC needs assessment. The Council notified Mrs X of its decision in June 2023 and requested Educational Psychologist (EP) advice. The Council should have received the EP advice by July 2023 and ultimately it should have issued the final EHC Plan by September 2023. However, EP advice was not received until November 2023.
19. Mrs X raised a stage one complaint in February 2024 as the Council had confirmed Y would receive an EHC Plan in Jan 2024, but no draft Plan had been received. The Council responded the same month attributing the delays to an increased demand in EHC needs assessments and a shortage of EPs. Mrs X raised a stage two complaint, but this was rejected by the Council as it felt it had nothing else to add to its previous response. The Council issued a draft plan in March 2024.
20. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.
21. Since Mrs X complained to us, Y received his final EHC Plan in June 2024. Y continues to attend nursery until the Council can find a suitable special school.

My findings

22. 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.
23. Following the Council reversing its decision, and conceding the case, 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 at the start of August 2023 and then issued the final Plan at the start of September 2023.
24. The EP advice should have been available to the Council by mid-July 2023 in order for it to have met the September deadline. The EP report was not complete until November 2023 which was a delay of 16 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 late June 2024.
25. 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 December 2023. It did not do so until late June 2024 which is a delay of 33 weeks which was fault.
26. In total the Council took 61 weeks to assess Y and issue his final EHC Plan instead of the 20 weeks statutory timescales. This caused Mrs X distress, frustration, and uncertainty about the provision Y would receive. It also delayed her appeal rights. The Council did issue Y’s final EHC Plan prior to him starting primary school. However, it has not found Y a school placement so he is still attending nursery. If Mrs X has any concern about missed provision since September 2024 she is open to make a new complaint with the Council.
27. 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. It has also agreed to create and provide us with an action plan addressing its EP shortages. Therefore, it does not require a further service improvement.

Back to top

Agreed action

28. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise to Mrs X to recognise the distress, frustration and uncertainty the delays caused her. 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 Mrs X £400 to acknowledge the distress, frustration and uncertainty caused to her 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 Mrs X £300 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in issuing Y’S EHC Plan after receiving advice from an Educational Psychologist
29. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

30. 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

Back to top

Investigator's decision on behalf of the Ombudsman