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. It delayed deciding whether to issue Y with an EHC Plan within the statutory timescales, caused by an 8 week delay in obtaining Educational Psychologist (EP) advice. It has then further delayed issuing Y’s final EHC Plan by 25 weeks after it received the EP advice. This has caused Mrs X distress, uncertainty and delayed her right of appeal to the SEND tribunal. It agreed to apologise to Mrs X and make payments to acknowledge this injustice.

The complaint

1. Mrs X complained the Council delayed completing her child, Y’s Education, Health and Care (EHC) needs assessment which has caused a further delay in issuing their final EHC Plan.
2. Mrs X said this has impacted on Y’s education and caused distress, uncertainty and delayed her right of appeal to the SEND tribunal

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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 Mrs X’s complaint and information she provided.
8. I considered the Council’s response to my enquiry letter.
9. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website.
10. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

11. 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.
12. 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.

13. 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.
14. 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.

What happened

15. Mrs X has a child, Y who is of secondary school age. Y has special educational needs and stopped attending school during 2023.
16. At the end of December 2023 Mrs X asked the Council to carry out an EHC needs assessment for Y which it agreed to do. In line with statutory timescales this meant the Council should have decided whether to issue Y with an EHC Plan by the start of April 2024. That being the case the Council should then have issued Y’s final EHC Plan by 3 May 2024.
17. As part of the EHC needs assessment the Council requested advice from an Educational Psychologist (EP). The EP provided advice at the start of May 2024 which was a delay of 8 weeks.
18. The Council issued its decision to issue Y with an EHC Plan at the end of May 2024
19. Mrs X complained to the Council in June 2024 about the delay in issuing Y with an EHC Plan. The Council responded and apologised for the delays in completing Y’s EHC needs assessment. It said the delays were down to an unprecedented number of EHC needs assessment requests over the last 18 months, causing a backlog. It said in addition there was a national and local shortage of EPs to meet the increased demand. The Council outlined steps it was taking to address these issues including ongoing recruitment of EPs and SEND as well as using agency staff in the interim to resolve staffing issues.
20. Mrs X complained to us in September 2024.
21. The Council issued Y’s draft EHC Plan in October 2024.
22. The Council issued Y’s final EHC Plan towards the end of December 2024, naming School Z in section I. Mrs X told us she intends to appeal to the SEND tribunal.

My findings

23. 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.
24. Following Mrs X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by April 2024 and then subsequently issued the final Plan by 2 May 2024.
25. The EP report should have been available to the Council by early March 2024 in order for it to have met the April deadline. The EP report was not complete until the start of May 2024 which was a delay of 8 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.
26. However, the delay in obtaining EP advice is not the main reason for the delay in issuing Y’s final EHC Plan. With EP advice in hand the Council should have issued Y’s final Plan by the end of June 2024. At the time of writing the Council has still not issued Y’s final EHC Plan which is a further delay of 25 weeks which is fault.
27. In total, so far the Council has taken just over one year to assess Y instead of the 20 weeks statutory timescales due to the delay in obtaining EP advice and because of backlogs and staffing issues in its SEND service. This injustice continues.
28. As explained above, while the final Plan is not issued I have seen sufficient evidence which shows how the Council intends to finalise the Plan and Mrs X has made it clear she intends to appeal the Plan when she receives it.
29. The faults outlined above have impacted on Y’s education and caused Mrs X distress, uncertainty and delayed her right of appeal to the SEND tribunal which she intends to use. It leaves uncertainty around whether Y could have accessed some of the specialist provision or reintegrate back into school with an earlier final Plan.
30. The Council has explained following similar cases investigated by the Ombudsman the action it is taking to meet the demands in its SEND service and to reduce the backlog in the EHC needs assessment process. This includes ongoing recruitment of EPs and SEN case officers. I have therefore not recommended any further service improvements.

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Agreed action

31. Within one month of the final decision the Council agreed to take the following action:
1. Pay Mrs X £200 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.
2. Pay Mrs X £500 to acknowledge the distress, uncertainty and delayed appeal rights caused by the delay in issuing Y’s final EHC Plan after it received EP advice.
3. Write to Mrs X and apologise for the injustice caused by the faults above. 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 recommend.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. 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

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Investigator's decision on behalf of the Ombudsman