Summary: Miss X complains the Council failed to issue an Education Health and Care Plan within the statutory time frame. She says this impacted her child’s education and mental health. We find the Council at fault. The Council will apologise and make a payment to Miss X.

The complaint

1. Miss X complains about the Council’s handling of her child’s special educational provision. Specifically, she complains the Council:

1. failed to issue an Education Health and Care Plan within statutory time frames; and
2. communicated poorly throughout the process.

2. Miss X says this means her child has not had suitable education for 18 months. She says this has impacted her child’s mental health and development. She says it has also caused significant stress to her and her family.

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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. 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

5. I considered the information and documents provided by Miss X and the Council. Miss X and the Council have had an opportunity to comment on a draft of this decision. I considered all comments received before making this final decision.
6. I also considered the relevant statutory guidance, as set out below. I have also considered the Ombudsman’s published guidance on remedies.
7. 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 found

What should have happened

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.
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.
• As part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist (EP) and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice.
• 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.

10. The Council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The Council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
11. There is a right of appeal to the SEND (Special Educational Needs and Disabilities) Tribunal about the educational provision and placement named in a child’s EHC Plan. This appeal right is only engaged once the final EHC Plan and accompanying letter have been issued.

What happened

EHC Plan (part a of the complaint)

12. The Council received a request for an EHC needs assessment for Miss X’s child, B, in March 2023.
13. In April, the Council declined the request for an EHC needs assessment.
14. The Council received a second request for an EHC needs assessment for Miss X’s child, B, in mid-August 2023.
15. The Council accepted the request for an EHC needs assessment in October and decided to issue a plan.
16. In May 2024, Miss X made a formal complaint.
17. In late May, the Council responded to her complaint. It accepted it should have issued B’s EHC Plan by November 2023. It said its delay was because of staffing issues and an increase in requests for EHC assessments.
18. In August, the Council responded to Miss X’s second stage complaint. It apologised to her for its delay in issuing the final EHC Plan and for its poor communication.
19. B is yet to receive their final EHC Plan.

Poor communication (part b of the complaint)

20. In late May, the Council’s first stage complaint response apologised to Miss X for its poor communication. It said it would improve its service. It told Miss X that Officer A would call her with an update.
21. Officer A did not contact Miss X.
22. In August, the Council’s second stage complaint apologised to Miss X for its poor communication and upheld her complaint. It said its service had not met its expected standards.
23. In October, Miss X attended a review meeting with Officer A. Afterwards, Miss X contacted Officer A. To date, Miss X has not had a response.

Analysis

EHC Plan (part a of the complaint)

24. 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. The process from a request for an EHC Plan to the Council issuing a final Plan should take a maximum of 20 weeks. The Council says it should have issued B’s final EHC Plan by November 2023. It is still yet to issue the EHC Plan. To date, this delay has been 14 months longer than the timescale allows. This is fault. This has caused Miss X and B injustice by avoidable and unnecessary uncertainty which is ongoing until the Council issues B’s final EHC Plan.
25. The Council has recently told the Ombudsman about the actions it is taking to meet the increased demand of the EHC assessments and improve its SEND service in relation to other cases. Therefore, I am not making service improvement recommendations in this case.

Poor communication (part b of the complaint)

26. Miss X contacted the Council several times for an update on B’s EHC Plan. The Council accepted its standard of communication with Miss X did not meet its expectations. It recognised her efforts to contact the Council. In its stage one response it told Miss X it would improve its service in its stage one response and Officer A would call her with an update by the end of the following week. However, Officer A did not call. In its stage two response, the Council upheld Miss X’s complaint about poor communication. However, Miss X says the poor communication is ongoing. She says following a meeting in October 2024 she contacted the Council, and to date has not received a response. This is fault which has caused Miss X’s avoidable and unnecessary frustration and uncertainty.

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Agreed action

27. Within four weeks of my final decision, the Council has agreed to:
1. issue the final EHC plan without further delay.
2. makes a payment of £1400 to Miss X to remedy the injustice caused by the delay in the Council issuing B’s final amended EHC Plan (this is calculated from November 2023 up until January 2025) and the Council is to pay an additional £100 per month after this date for each month of delay thereafter.
3. provides a written apology to Miss X for the additional delay in issuing B’s final EHC Plan and poor communication from May 2024 to date.
4. makes a payment of £300 to Miss X to reflect the avoidable and unnecessary uncertainty and frustration caused by its poor communication. In arriving at this figure, I considered our published guidance on remedies. I considered the efforts Miss X made to contact the Council, the length of time she has experienced poor communication from the Council, and that the Council’s communication did not improve after upholding her complaint. I consider this amount to be appropriate and proportionate to the injustice caused to Miss X.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation. I find the Council at fault and this caused injustice. The Council will apologise and make a payment to Miss X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman