Summary: Ms X complained the Council delayed issuing J’s Education, Health and Care (EHC) Plan. Ms X also complained the Council communicated poorly and failed to properly address her complaint. We have found the Council at fault for its delay in issuing J’s EHC Plan, partly arising from service failure. We have also found the Council at fault for its poor communication. We do not consider the delay led to J missing special educational provision, for the reasons set out in the statement. However, the Council’s faults caused avoidable distress and uncertainty for Ms X and J, which the Council did not adequately recognise. The Council has agreed to apologise for this. The Council is already implementing service improvements to address the underlying faults that occurred in this case. The Ombudsman will continue to monitor these improvements through our casework.

The complaint

1. Ms X complained the Council delayed issuing J’s Education, Health and Care Plan. Ms X also complained the Council communicated poorly and failed to address her concerns through its complaints procedure.
2. Ms X said the Council’s delay and poor communication caused avoidable uncertainty and distress, which the Council did not adequately address.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)

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How I considered this complaint

6. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
8. 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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Relevant legislation, guidance and policy

Education, Health and Care Plans

9. 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.

Assessment timescales

10. 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 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.
• 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.
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. Those consulted have a maximum of six weeks to provide the advice. 

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What I found

Key events

13. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
14. On 7 March 2024, Ms X asked the Council for an EHC needs assessment for J. On 24 April 2024, the Council agreed to carry out an assessment. I understand the Council sought advice from professionals for the purposes of the assessment on the same day.
15. In July 2024, Ms X complained to the Council. She said the Council had breached the statutory timescales for issuing J’s EHC Plan. Ms X asked the Council to send J’s draft EHC Plan as soon as possible and highlighted the injustice caused by a delay. In subsequent correspondence, Ms X also highlighted the Council’s poor communication.
16. In August 2024, the Council responded to Ms X’s complaint:
1. It accepted it had breached the statutory timescales for issuing J’s EHC Plan. It apologised and upheld Ms X’s complaint.
2. The Council said it had received all professional advice sought by mid-June 2024, apart from the educational psychologist (EP) report. It said it received this on 1 August 2024. The Council said there was a national shortage of EPs and it had been regularly chasing a response.
3. The Council said it would take J’s case to a decision panel. It said it had a backlog of cases that it dealt with chronologically and it could not give a timeframe for a decision in J’s case. It accepted Ms X would find this unfair.
4. The Council said there was an unprecedented demand for its services. It set out some measures it had taken to manage this. It also said it would allocate Ms X a new caseworker.
17. Ms X sought to escalate her complaint. She said the Council had accepted it was at fault, but had not addressed the impact or taken steps to put it right. The Council declined to consider Ms X’s complaint any further, as it said there was no new evidence to consider and the outcome would not change.
18. On 10 October 2024, the Council issued J’s draft EHC Plan. After considering Ms X’s comments, the Council issued J’s final EHC Plan on 19 November 2024.

Analysis

19. The Ombudsman expects councils to follow the timescales set out in the law and statutory guidance. Paragraph 10 sets these out.
20. Ms X requested an EHC needs assessment on 7 March 2024. The Council agreed to assess J’s needs and ultimately decided to issue an EHC Plan. It should therefore have issued the final EHC Plan within a maximum of 20 weeks from the date Ms X sought an assessment. This would have been on or around 25 July 2024. Ultimately, the Council did not issue J’s final EHC Plan until 19 November 2024. This is a delay of around four months.
21. I understand the Council sought an EP’s advice on the date it agreed to assess J’s needs. The Council should ensure it receives statutory advice within six weeks of request, which would have been on or around 5 June 2024. The Council said it did not receive this advice until 1 August 2024. Two months of the Council’s delay was therefore due to a shortage of Educational Psychologists (EPs).
22. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. In this case, the principal cause of the delay was receiving the EP advice. I have found the Council acted with fault by way of service failure.
23. Having received the EP’s advice, the Council should have issued the final EHC Plan approximately seven weeks later, around 18 September 2024. The Council said the further two-month delay was due to an increased demand for EHC needs assessments and the pressures this placed on its service. I have found this further delay is also fault.
24. In its complaint response, the Council accepted it had delayed issuing the EHC Plan. However, it did not adequately address any injustice caused.
25. I have considered whether the delay in issuing the EHC Plan after receiving the EP’s advice led to a loss of provision for J, but have concluded this is not the case. J is not yet of compulsory school age and attends an early years setting. J will transfer to a specialist setting after reaching compulsory school age at the start of the next academic year, around which time the EHC Plan is likely to be reviewed. Section F of J’s EHC Plan primarily consists of strategies and approaches that should be used when working with J, rather than quantifiable provision. On the balance of probabilities, there would be sufficient time remaining in the academic year to implement these strategies and offset any possible loss. The plan also calls for a specific block of 12 occupational therapy (OT) sessions. Again, there would be sufficient time to deliver these across the remaining academic year. The delay would not therefore have caused J to miss out on the overall number of OT sessions.
26. However, the overall delay caused Ms X and J an injustice, in the form of avoidable frustration, distress and uncertainty. Ms X also highlighted the Council’s poor communication as an exacerbating factor in the distress experienced. The Council’s complaint response did not adequately address this point, noting that Ms X had been allocated a new caseworker, who would be in touch shortly. On the balance of probabilities, I believe it is likely Ms X experienced inconsistent communication from the Council, given the stated pressures on its service. I have found the Council at fault for its inconsistent communication with Ms X. This caused Ms X injustice in the form of further avoidable frustration and uncertainty.

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Action

27. Within four weeks of the final decision being issued, I propose the Council should:
1. Provide a written apology to both Ms X and J for its poor communication and the overall delay in issuing J’s EHC Plan, and for the avoidable distress and frustration this caused. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
28. The Council should provide us with evidence it has complied with the above actions.
29. In previous investigations, the Council explained to the Ombudsman the efforts it is taking to address the delays in its EHC needs assessment process. It said it had set up a new team to improve connections across its SEND service. This included new roles and additional staff. The Council also said it would implement a new case management system to improve oversight. Given these improvements are being implemented, I have not made any duplicate recommendations here. The Ombudsman will continue to monitor the Council’s progress through our casework.

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Decision

30. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman