Summary: Miss X complained about delays in the Education, Health, and Care Plan process and in issuing a final EHC Plan for her son. We found the Council’s failure to issue a final EHC Plan within the statutory timeframe is fault. This fault has caused Miss X and her son an injustice.

The complaint

1. The complainant, Miss X complained about delays in the Education, Health, and Care Plan process and in issuing a final EHC Plan.
2. Miss X also complains about poor communication from the Council.

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

Back to top

How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Miss X; and
• Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Education, Health and Care Plan

7. 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 council can do this.
8. 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: 
• 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).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

What happened here

9. Miss X requested an EHC Needs Assessment for her son Y on 6 October 2023. On 23 November 2023 the Council told Miss X it would not carry out an assessment.
10. Miss X challenged this decision and a mediation meeting was arranged for 22 December 2023, this was then rescheduled for 4 January 2024. The Council cancelled this meeting on 2 January 2024 and said it would reverse its original decision. Miss X asked the Council to obtain advice and information from an Occupational Therapist (OT) as part of the assessment.
11. The Council then wrote to Miss X on 18 January 2024 confirming it would carry out a needs assessment. The Council also confirmed on 19 February 2024 that it would arrange an OT assessment.
12. On 26 April 2024 Miss X made a formal complaint to the Council about delays in the EHC Needs Assessment process. She noted the Council should have confirmed whether it intended to issue a plan within 10 weeks of its revised decision to assess. And if it intended to issue an EHC Plan, it should have done so within 14 weeks of the revised decision. The Council had missed both of these deadlines.
13. Miss X complained the Council had not yet allocated an Educational Psychologist (EP) and had allocated an OT who could not begin an assessment until September 2024. She asked the Council to allocate an EP and identify an alternative OT so that a final Plan could be issued as soon as possible.
14. The Council responded on 16 May 2024 and acknowledged it had not met the 20 week timeframe. It explained the demand for EHC needs assessments was high and continued to increase. The Council was working to recruit more staff and support the staff in post to manage the timescale. It said the national shortage of EPs also led to a delay. This is an issue for many councils and impacts on the timeliness of assessments being completed. The Council said it was trying to recruit more psychologists and had plans in place to try and address the issue. It also noted there was also a high demand for OT assessments and a shortage of therapists.
15. The Council apologised for the delay in the EHC process and upheld Miss X’s complaint. It was unable to give a specific date when Y would be seen by an EP but confirmed he would be allocated a date by the end of the month.
16. As Miss X was not contacted by an EP and did not receive any updates, she made a further complaint to the Council on 31 May 2024.
17. An officer discussed Miss X concerns with her in early June 2024 and responded to her complaint on 16 June 2024. The Council said the assessment was allocated to an EP on 5 May 2024 with the expectation the assessment would be carried out in May 2024. The Council said it was unaware the EP was unwell which had led to a delay. An assessment had now been arranged for 14 June 2024.
18. The Council also apologised for the delay in the OT assessment. It was unable to give a timescale for the assessment but would continue to follow this up. The Council said it was possible to progress the EHC needs assessment and if the outcome was to issue a draft EHC Plan, key advice from the OT assessment could be added at a later date.
19. In addition the Council apologised that contact with the EHC team was not as regular as it would expect. Its communication policy expected contact at three weekly intervals, but Miss X complained there had been periods of little or no contact. The Council would raise this with the EHC team so that it could be addressed.
20. The Council told Miss X significant investment in the SEND services had recently been agreed. This would increase staffing capacity to support the EHC team and also support the implementation of a wider range of improvements locally.
21. As Miss X remained dissatisfied she has asked the Ombudsman to investigate her complaint. Since complaining to us the Council has issued a final EHC Plan on 29 July 2024. Miss X is unhappy the Council issued the plan before the OT had assessed Y’s needs. The EHC Plan names a type of setting rather than a specific school.
22. Miss X says Y started at a local mainstream primary school in September 2024. The EHC Plan has since been amended to take account of the OT advice, but still does not name the school.

Analysis

23. 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. Miss X requested an assessment for Y in October 2023 and the Council made its decision not to assess seven weeks later. This is outside the six week statutory timeframe.
24. Having then agreed to carry out the assessment on 18 January 2024 the Council took over 27 weeks to complete the assessment and issue a final plan. This is 13 week longer the timeframe required by the Regulations and Code. The delay in completing the EHC needs assessment and in issuing a final Plan is fault.
25. This fault was exacerbated by poor communication from the Council. The fault caused Miss X unnecessary frustration, distress, and uncertainty. I consider the Council should make a symbolic payment to remedy this fault.
26. In previous complaints we have made recommendations and the Council has agreed to take action to manage the demand for EHC Needs Assessments and improve timescales for completing EHC Plans. I do not intend to repeat these recommendations.

Back to top

Agreed action

27. The Council has agreed to:
• apologise to Miss X for the delays in the EHC Plan process and the distress, frustration, and uncertainty this caused;
• pay Miss X £300 to acknowledge the distress, frustration and uncertainty caused to her by the council’s failure to issue her final EHC plan in line with statutory timescales.
28. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

Back to top

Final decision

29. The Council’s failure to issue the final EHC Plan within the statutory time frame is fault. This fault has caused Miss X an injustice.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman