Summary: Mr X complained about the delay in the Council issuing his son’s Education, Health and Care Plan. We found fault because of the significant delay in completing the assessment process and issuing a final plan for Mr X’s son. This caused avoidable distress, frustration and uncertainty to Mr X. To remedy the injustice caused, the Council has agreed to apologise and make a payment to Mr X.

The complaint

1. Mr X complains about the Council’s delay in completing his son’s Education, Health and Care Plan (EHC Plan) needs assessment after the family requested this in June 2023. He also complains the Council took too long to issue his son’s Final EHC Plan after reports had been received to complete the needs assessment process and did not properly communicate with him about the delays.
2. Mr X says this has caused distress and frustration and has affected the family’s quality of life.

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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. The First-tier Tribunal (Special Educational Needs and Disability (SEND)) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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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What I have and have not investigated

7. My investigation begins in June 2023 when the Council received a request for an EHC needs assessment (the assessment) to take place for Mr X’s son, Y.
8. I have not investigated any matters related to Y’s education or the EHC Plan after it was issued in July 2024 because this is when Mr X’s appeal rights to the SEND Tribunal were engaged.
9. I have investigated any matters linked to communication beginning in June 2023. My investigation into this aspect ends when the Council issued its stage two complaint response in September 2024.

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How I considered this complaint

10. I have considered all the information Mr X provided and discussed this complaint with him. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
11. Mr X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

12. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
13. The EHC Plan is set out in sections. Section F of the plan is about the special educational provision needed by the child or the young person. Section I is about the name and/or type of educational placement set out in the plan.

Timescales and process for EHC Plan assessment

14. 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;
• 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 SEND 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; and
• 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).
15. Section 9.42 of the Code says that one of the exceptions for taking more than 20 weeks is when the child is out of the Council’s area for a period of at least four weeks.

Appeal rights

16. There is a right of appeal to the SEND Tribunal about:
• the description of a child or young person’s SEN;
• the special educational provision specified; and
• the school or placement or that no school or other placement is specified in their EHC Plan;
17. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a Final EHC Plan has been issued.
18. If an appeal was lodged or should have been lodged, we can still look at matters that are not connected to or are not the consequence of an appeal. This includes delays in the process before an appeal right started.

What happened

19. I have set out below a summary of the key events. This is not meant to show everything that happened.
20. Mr X has a young son, Y. Y has various health needs.
21. At the end of June 2023, the Council received a request for an EHC needs assessment on Y. This would decide if he needed an EHC Plan.
22. In mid-July 2023, Mr X told the Council the family were out of the area until early September 2023.
23. In September 2023 and as part of the assessment process, the Council received reports from a speech and language therapist and a specialist doctor.
24. At the beginning of February 2024, the Council received a report from an educational psychologist (EP) which was required as part of the process.
25. At the end of February, the Council appointed a third-party company to write Y’s EHC Plan on its behalf.
26. At the beginning of April 2024, the Council sent a draft EHC Plan to Mr X. During May and June 2024, the Council sent consultation letters to nine education settings to ask if they could provide a school place for Y. None of these were successful.
27. At the beginning of July 2024, the Council issued Y’s first Final EHC Plan. It did not name any form of educational establishment in Section I of the plan.
28. On the same day, Mrs X complained to the Council. The family was unhappy with the delay in finalising the EHC Plan and that it had not named an education setting when Y was due to start primary school in September 2024.
29. The Council replied to the complaint at the end of July. In this letter, the Council:
• apologised it had not been able to secure Y a school place, including at the family’s preferred choice of setting;
• advised of their appeal rights regarding Section I;
• apologised for the delay in finalising the EHC Plan which delayed the family’s right of appeal to the SEND Tribunal; and
• offered £300 as a remedy payment. The Council said this was to reflect the delay and frustrated right of appeal.
30. Mr X escalated the complaint to stage two of the Council’s process at the beginning of August 2024.
31. The Council replied a few days later to confirm it would continue to work on the school placement issue and that this was its final response. It signposted Mr X to the Ombudsman where he then registered a complaint.

Analysis

EHC Plan process

32. Statutory timescales state that from beginning to end, the EHC needs assessment process and any EHC Plan resulting from this should normally take no more than 20 weeks to complete. However, one of the exceptions set out in the Code applies here as Y was out of the Council’s area at the beginning of the process for more than four weeks.
33. I have calculated and extended the 20-week deadline to take into account the 8 weeks when Y was out of the Council’s area. This meant his first Final EHC Plan should have been issued at the beginning of January 2024. Instead, it was issued at the beginning of July 2024 causing a six-month delay.
34. As part of my enquiries, I asked the Council to explain the delay over the 20-week statutory timescale before it issued Y’s plan.
35. In response, the Council said the delays were caused due to multiple issues, these were:
• staffing issues and staff absences;
• an increase in EHC needs assessment requests which reflected the position nationally; and
• due to the increase in requests, a delay in identifying an EP to complete the necessary report for the assessment, which was also reflective of issues nationally.
36. The Ombudsman recognises the national shortage of EPs available to complete reports for EHC needs assessments, leading to delays in the rest of the EHC Plan process. Our current approach is to remedy the injustice caused by this by recommending a symbolic payment of £100 per month from the date the EHC Plan should have been issued to when it was.
37. Not issuing the EHC Plan on time was fault. It would have caused Mr X distress and frustration. It also meant the family’s appeal rights were delayed whilst waiting for the final plan to be issued which would have caused distress and uncertainty. I have made a recommendation below to remedy the injustice caused to Mr X and Y.
38. Also in response to my enquiries, the Council said it had undertaken a significant recruitment programme to improve its SEND services. The is also reinforced by a SEND improvement plan the Council already has in place. Given this, I do not intend to make any recommendations related to staffing or capacity.

Communication

39. Mr X complained the Council did not keep the family updated about delays in the process or in issuing the EHC Plan. In response to my enquiries, the Council repeated the information about its staffing issues and recruitment drive. It also said it had not communicated with the family as it should or would want to have done.
40. I agree. I have viewed the evidence sent by the Council. There was a significant increase in communication from the Council to the family after a new caseworker took the case on in May 2024. However, before this, there is little evidence of updates to the family. Any updates were only provided when the family or someone making contact on their behalf had made an enquiry.
41. This lack of communication is fault. It would have caused Mr X distress, frustration and uncertainty. I have made a recommendation below to remedy this injustice.

The Council’s suggested remedy

42. In its stage one response to Mrs X, the Council offered a remedy payment of £300 as set out above. Mr X confirmed to me the family had not accepted this. Mr X said he wanted to secure a place for his son’s schooling and was not interested in any financial offer from the Council.
43. In the circumstances of this complaint, I am not satisfied the amount is an appropriate remedy. I have made a recommendation below to reflect this. Mr X can choose to accept or decline the Council’s £600 remedy payment.

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Agreed action

44. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mr X for the identified injustice; and
• make a symbolic payment to Mr X of £600 to reflect the distress and uncertainty caused by the delay in issuing the eventual plan and the delayed right of appeal. This is calculated at £100 per month for each of the six months the plan took to issue outside of statutory timescales.
45. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
46. Payments made are in line with the Ombudsman’s guidance on remedies.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman