Summary: Mr X complained about the Council’s delay completing Ms Y’s child, Z’s Education, Health and Care needs assessment. We find the Council at fault. This impacted Z’s education and caused distress and uncertainty for Ms Y. The Council has agreed to apologise and make a payment to Ms Y.

The complaint

1. Mr X complained the Council failed to complete Ms Y’s child, Z’s Education, Health and Care (EHC) needs assessment and issue their EHC Plan within the statutory timescales.
2. Mr X says the delay has impacted Z’s access to appropriate support.
3. Mr X wants the Council to issue Z’s EHC Plan immediately.

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The Ombudsman’s role and powers

4. 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)
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 the complaint and information Mr X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. I referred to the Ombudsman Guidance on Remedies, (a copy of which can be found on our website).
10. Mr 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

Timescales and process for EHC needs assessment 

11. 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).

Education, Health and Care Plan

12. A child or young person with special educational needs may have an 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. 

What happened

13. In January 2024, Ms Y requested an EHC needs assessment for her child, Z.
14. In March, the Council received the Educational Psychology advice, which it must seek according to the process set out in law, and in May decided to issue Z with a EHC Plan.
15. In June, Ms Y complained to the Council that Z’s EHC needs assessment was taking a long time and she had not heard anything since May.
16. Later that month, the Council responded to Ms Y’s complaint. It apologised for the delay and explained this was due to high demand for services, a national shortage of Educational Psychologists, and staffing issues within the SEND team. The Council said it is recruiting more staff to mitigate the issue and this should reduce the delays experienced.
17. In July, Mr X brought the complaint to the Ombudsman.

My findings

18. The Council has accepted it did not complete the EHC needs assessment or issue the final EHC Plan within the statutory timescales.
19. Z’s EHC Plan should have been issued within 20 weeks of Ms Y’s request for assessment in January 2024, so in May 2024. However, it had still not been issued when Mr X brought the complaint to us in July 2024.
20. During my investigation, the Council issued the final EHC Plan in November, a delay of 6 months. This delay is fault.
21. Mr X says the delay has impacted Z’s education as he has not received the necessary support. It has also delayed Ms Y’s right of appeal to the SEND Tribunal and caused avoidable distress and uncertainty.
22. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2400 per term to acknowledge the impact of that loss. The figure we recommend takes account of the severity of the child’s special educational needs, whether any provision was made, whether this was a key year of education, and any loss or delayed right of appeal to tribunal.
23. In Z’s case we based the remedy on £900 a term. This due to Z’s needs, his year at school, attendance at school, and education provided during the delay.

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Agreed action

24. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to: 
• apologise to Ms Y in line with our guidance on Making an effective apology;
• pay Ms Y £200 to recognise the avoidable distress and uncertainty caused to her by the Council’s delay and poor communication; and
• pay Ms Y £1350 as a remedy for Z’s benefit, in recognition of the loss of educational support for one and a half school terms. I assessed this by applying the guidelines in our published Guidance on Remedies.
25. I have not recommended any action for the Council to take to improve its services as I am satisfied it is already taking appropriate steps. During my investigation the Council assured the Ombudsman of the actions it is taking to address delays within its SEND team. It has secured 10 new members of staff, enabling the team to issue 50 EHC Plans per week. The Council says it is working to reduce the current backlog and issue EHC Plans as quickly as possible without compromising quality.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have completed complete my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman