Summary: Miss X complained about delays in her son, Y’s, Education, Health and Care needs assessment. She said Y has been out of school since February 2023 and she incurred significant costs securing educational provision for him. Miss X said this frustrated and distressed her and Y. There was fault in the way the Council delayed completing the needs assessment. This frustrated Miss X and frustrated her right of appeal to the Tribunal. The Council has agreed to apologise, make a financial payment and provide guidance to its staff.

The complaint

1. Miss X complained about delays in her son, Y’s, Education, Health and Care (EHC) needs assessment. She said Y has been out of school since February 2023 and she incurred significant costs securing educational provision for him. Miss X said this frustrated and distressed her and Y.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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 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.

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How I considered this complaint

5. I read Miss X’s complaint and spoke to her about it on the phone.
6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. Miss 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

Background information

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.
• 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.

10. The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
11. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

12. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  
13. Those consulted have a maximum of six weeks to provide the advice. 
14. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
15. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

16. 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)
17. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
18. 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.
19. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
20. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
21. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

What happened

22. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
23. Miss X removed Y from school in February 2023. Miss X confirmed she would electively home educate Y and was aware of her responsibilities.
24. Miss X applied for an EHC needs assessment in July 2023.
25. The Council told Miss X it would not assess Y in August 2023. Miss X said she would appeal this decision and would engage with mediation.
26. The Council agreed to assess Y in September 2023.
27. Miss X chased the Council in October 2023. The Council advised her it was waiting for the EP advice and would progress the case when it could.
28. The EP provided the advice in December 2023.
29. The Council decided to issue a plan in March 2024.
30. Miss X chased the Council for the plan in April 2024. The Council said it was working through its backlog.
31. Miss X complained to the Council in June 2024. She said she applied for an EHC Plan in June 2023 and was still waiting for a draft plan. Miss X stated she needed the plan to begin consulting with school for Y to return to education.
32. The Council issued a draft plan in July 2024.
33. The Council responded to Miss X’s complaint in July 2024. The Council apologised for the delay and explained it had high numbers of requests for an EHC Plan, a national shortage of EP’s and staff challenges. The Council confirmed it issued the plan and Miss X had 15 days to comment.
34. The Council issued Y’s final EHC Plan at the end of July 2024.
35. Miss X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Miss X would like the Council to refund her costs of providing education and find Y a placement.
36. In response to my enquiries the Council stated Miss X chose to electively home educate Y. The Council explained the delays were due to high workloads and staffing challenges. The Council confirmed it has recruited staff to improve its performance in issuing EHC Plans within timescales.

My findings

EHC needs assessment

37. 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 asked for an assessment for Y in July 2023. The Council made its decision not to assess within six weeks. This is in line with the timescale. The Council was not at fault.
38. The Council then agreed to assess Y after mediation at the end of September 2023. The original timescales of 20 weeks still apply after the Council changed its decision.
39. Councils must seek EP advice as part of an EHC assessment. This should be received within six weeks of the council requesting it. The EP’s advice was due in the middle of November 2023. The Council received the advice in the middle of December 2023, a delay of one month. The Council is responsible for the commissioning and delivery of the EP advice and information. The delay in receiving the advice was due to a nationwide shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons the EP advice took longer than it should have, the delay was nonetheless fault.
40. Even after considering the one-month delay in receiving the EP advice, it should have issued Y’s final EHC Plan by the end of December 2023. The Council issued Y’s EHC Plan at the end of July 2024. This seven-month Council delay is fault.
41. In total, the Council took 13 months to assess Y and issue a final EHC Plan, instead of the 20 weeks required by the Regulations and the Code. This was a total delay of eight months.
42. There was an early delay caused by an EP shortage and then a second delay after this before the Council issued a final EHC Plan. This is fault. This frustrated Miss X and frustrated her right of appeal to the Tribunal.
43. I am pleased to see the Council is making efforts to address the demands on its EHC assessment service. As the Council has already taken suitable steps to decrease the wait time for EP advice, reduce how long it takes to prepare first EHC Plans and improve the SEND department’s service, I have not made a further recommendation.

Missed education

44. Miss X complained Y missed education and felt the Council should reimburse her the costs of educating Y.
45. The Council has evidenced Miss X chose to remove Y from school in February 2023. While I appreciate Miss X felt she had no choice given the difficulties with the school, the Council has evidenced a document where Miss X agreed to take on all responsibilities when educating Y at home. This includes funding educational provision. I am satisfied Miss X made an informed decision to remove Y from school, with the knowledge this would include funding provision. The Council was not at fault for any missed education in this case.
46. Miss X raised concerns the final EHC Plan named a mainstream placement. The final EHC Plan has a right of appeal to the Tribunal. The Council was working with Miss X to identify a suitable school and considering a personal budget after it issued this decision. However, this happened after Miss X approached the Ombudsman. I cannot consider actions after Miss X approached the Ombudsman, and this will need to be considered as a separate complaint.

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Recommended action

47. To remedy the outstanding injustice caused to Miss X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Miss X for the delays in the EHC needs assessment. 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 in my findings.
• Pay Miss X £100 to recognise the uncertainty, avoidable distress and frustration caused by the delay in obtaining advice from an EP.
• Pay Miss X £500 to recognise the distress, frustration and uncertainty caused by a seven-month delay in issuing Y’s EHC Plan.
• Remind relevant staff of the Council’s duties in adhering to the statutory timescales when completing EHC needs assessments.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation. I have found fault by the Council, which caused injustice to Miss X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman