Summary: Miss X complained about the Council’s handling of her request for an Education, Health and Care needs assessment, which denied her child support in preschool. We found avoidable delay by the Council in completing the assessment and issuing an Education, Health and Care Plan for Miss X’s child. The Council agreed to apologise to Miss X and make a symbolic payment of £800 in recognition of the distress and impact on C’s preschool education caused by its avoidable delay.

The complaint

1. Miss X complained about the Council’s unreasonable delays in both completing the Education, Health and Care (EHC) needs assessment for her child (in this statement known as ‘C’) and then issuing an EHC Plan.
2. Miss X said the delays had an adverse impact in denying C early extra educational support. Miss X also said she had reduced her working hours to both support C and press the Council for action, which had been stressful.
3. Miss X wanted the Council to triage EHC cases, increase EHC staff, and regularly keep in touch with parents, particularly if there were delays.

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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. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. 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)
9. Under our information sharing agreement, we will share the final decision on this complaint with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

10. Since bringing her complaint to us, Miss X has received C’s final EHC Plan and used her right of appeal to the SEND Tribunal to challenge it. I could not investigate matters the SEND Tribunal could decide (see paragraphs 6 and 7 of this statement). My investigation focused on the time the Council took to complete C’s EHC needs assessment and to issue the final EHC Plan, which gave Miss X her SEND Tribunal appeal rights.

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How I considered this complaint

11. I considered evidence provided by Miss X and the Council and relevant law, policy and guidance. I shared Council information with Miss X. And I gave Miss X and the Council an opportunity to comment on a draft of this statement and considered any comments received before making a final decision.

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What I found

Background

12. A child or young person with special educational needs (SEN) 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 SEND Tribunal or the council can do this. 
13. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (the Code) sets out the process for carrying out EHC needs assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs and Disability Regulations 2014 (the SEND Regulations). 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. 
• Assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• In assessing needs, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• 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; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

Those consulted have a maximum of six weeks to provide the advice. 

• Where the council carries out an assessment, it must decide whether to issue or refuse to issue an EHC Plan within 16 weeks.
• 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 which must respond within 15 calendar days.
• From the request for an assessment until the issue of any final EHC Plan must take no more than 20 weeks.

14. Children must be in fulltime education once they reach compulsory school age. This is on 31 December, 31 March or 31 August following their fifth birthday and they enter the ‘reception year’.

Summary of what happened

15. Miss X asked the Council for an EHC needs assessment in autumn 2023 when C was at preschool. (C’s preschool also provided infant and primary education.) Five weeks later, the Council told Miss X it would assess C. About a week later, the Council told Miss X the assessment would be delayed. The Council said it faced a high demand for assessments and there was a national shortage of EPs, which affected its SEN services.
16. It took the Council about seven weeks to assign an EP for C’s assessment. The EP provided their report within the following six weeks. And, about two months later, the Council decided it would issue an EHC Plan for C.
17. Eleven weeks later, Miss X complained to the Council about its failure to complete the assessment and issue a final EHC Plan for C within 20 weeks. Miss X said the lack of a timescale for issuing a draft EHC Plan was unacceptable. And, the lack of support was affecting C’s progress at preschool and impacting her family.
18. The Council replied three weeks later and apologised for the delay to C’s EHC needs assessment. The Council said the number of assessment requests received in the preceding 18 months was unprecedented and had led to delays. The Council also referred to the national shortage of EPs, which it had to consult on EHC needs assessments. The Council confirmed there were not enough EPs in Devon to meet demand. The Council outlined how it was working to improve capacity to meet the increased demand. The Council said staffing issues also delayed EHC Plan drafting. The Council signposted Miss X to the Ombudsman if dissatisfied with its complaint response.
19. A few weeks later, the Council issued a draft EHC Plan for C. Miss X responded to the draft and the Council consulted C’s preschool about a reception year placement for C at the school. About two months after issuing the draft EHC Plan, the Council issued C’s final EHC Plan and told Miss X of her SEND Tribunal appeal rights, which Miss X then used.

What the Council said

20. The Council said there were many reasons leading to the delay in completing C’s EHC needs assessment and issuing the final EHC Plan. These included the scale of assessment requests outweighing its ability to meet response timescales. It had acted to keep and recruit EP and SEN caseworkers and increased staffing levels since summer 2024. It continued to use agency staff to support its SEN services. The increased staffing levels had led to a 100% increase in the number of EHC Plans it issued since June 2024 compared to the relevant month in 2023. On communication, the Council said it told people at the start of an assessment about EP delays. It did not contact people again about delays but responded when people sought updates.
21. The Council said pressures remained in its SEND finances, the number of specialist placements, and provision available in mainstream schools. The Council also said progress on its SEND transformation programme continued, which aimed to improve SEN services and meet Department for Education targets.

Consideration

22. There was no dispute the Council failed to meet the legal timescale for issuing C’s final EHC Plan. Rather than 20 weeks, it took around 52 weeks for the Council to issue C’s final EHC Plan after receiving the request for a needs assessment. The time taken arose from delays in securing an EP report and in the Council’s SEN officers then considering the professional reports and issuing C’s draft and final EHC Plans.
23. We expect councils to follow legal timescales and the Code and are likely to find fault where there is evidence of a significant breach. We are also aware of the national EP shortage. If we are satisfied a council has put measures in place to mitigate the impact of that shortage on its services, we consider delay attributable to the lack of EP advice as service failure. (See paragraphs 4 and 5.)
24. In considering other complaints, we found fault with the Council’s EHC needs assessment and Plan procedures. We agreed service improvements with the Council for its SEN services. For example, improvements to deal with both the increasing demand for EHC services and the national EP shortage; and communicating with people. We are also aware of the Council’s SEND transformation programme and its work to improve communication, including with parents and families. I was satisfied the Council was working to put in place previously agreed service improvements. I therefore saw no need now to recommend further improvements. And, as the Council was working to improve its SEN services, including addressing EP delays, I found the delay in assigning an EP to C’s case was a service failure.
25. However, after receiving the EP’s report, it took the Council a further 34 weeks to issue C’s final EHC Plan. I recognised the caseload pressures on the Council’s SEN officers. However, there was further avoidable delay here, which was fault. And, overall, most of the delay occurred between receipt of the EP report and the issue of C’s final EHC Plan.
26. The Council’s avoidable delay in completing the EHC needs assessment and issuing C’s final EHC Plan would likely have caused Miss X avoidable distress and frustration. And there was a resulting delay to Miss X’s appeal rights, which she later used. The Council’s avoidable delay after it received the EP’s report also meant C lost the opportunity to receive the specialist provision eventually set out in the final EHC Plan. I therefore found the Council’s fault caused injustice.

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Action

27. I found fault causing injustice (see paragraphs 24 to 26). The Council had already apologised to Miss X (see paragraph 18). However, to recognise the injustice I identified in a proportionate, appropriate and reasonable way, the Council also agreed to make a symbolic payment of £800. The payment took account of the preschool support C missed given the Council’s avoidable delay in issuing the final EHC Plan following receipt of the EP’s report. And, overall, the payment represented about £100 for each month’s avoidable delay between the date the Council should have, and did, issue C’s final EHC Plan. The Council agreed to pay the £800 within 20 working days of this statement.
28. The Council also agreed to provide us with evidence it had complied with the action at paragraph 27.

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Decision

29. I found fault causing injustice. The Council agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman