Summary: Miss X complained the Council failed to meet statutory timescales for carrying out an Education, Health and Care (EHC) assessment for her son, Y. We find the Council was at fault in failing to meet the timescales. The Council has agreed to apologise and make a symbolic payment to remedy the injustice caused.

The complaint

1. Miss X complains about delays by the Council in completing an EHC assessment for her son, Y. She says the Council delayed completing an educational psychology assessment and then delayed sending a final EHC Plan.
2. Miss X says the Council’s failings have caused significant distress and uncertainty.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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)
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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How I considered this complaint

8. I discussed the complaint with Miss X and considered the information she provided. I considered the Council’s response to Miss X’s complaint and its response to our initial enquiries.
9. Miss X and the Council had the opportunity to comment on my draft decision. No comments were received.

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What I found

Relevant Law and Guidance

10. 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 First-tier Tribunal (Special Educational Needs and Disability) (the tribunal) or the council can do this.
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. 
• 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 should 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 council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

12. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). 
13. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. 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 after a final EHC Plan has been issued.

What happened

14. On 12 December 2023 Miss X requested an EHC assessment for her son, Y. The Council agreed to carry out this assessment.
15. Y was assessed by an EP and advice was received on 23 May 2024.
16. On 18 June the Council decided to issue an EHC Plan for Y.
17. On 10 July Miss X complained to the Council about the delay in completing an EHC assessment and issuing a final EHC Plan for Y.
18. The Council responded to the complaint and apologised for the delay. The Council explained it did not receive the EP advice until 23 May. It said it was experiencing delays in writing draft EHC Plans due to staff challenges and was recruiting additional staff to mitigate this.
19. Miss X remained unsatisfied and complained to the Ombudsman in September.
20. On 8 November the Council issued a final EHC Plan for Y.

Analysis

21. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
22. In accordance with statutory timescales the Council had 16 weeks from Miss X’s request for an EHC assessment to decide whether to issue an EHC Plan. Therefore, it should have made this decision by 2 April 2024. However, the Council took approximately 27 weeks to decide to issue an EHC Plan for Y. This was not in line with timescales and was fault. The delay caused Miss Y distress and frustration.
23. The Code states that Councils must seek EP advice as part of an EHC assessment. This should be received within six weeks of the Council requesting it. Therefore, it should have been received in early March 2024. However, the EP advice was not received until 23 May, which is a delay of approximately eleven weeks.
24. The Council is responsible for the commissioning and delivery of the EP advice and information. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. Therefore, although I acknowledge the delay in receiving the EP advice was outside the Council’s control, it is still fault. I find this is service failure as I have set out in paragraph four above, which has caused Miss X and Y distress in the form of uncertainty and frustration.
25. After the EP report was received, the Council should have issued a final EHC Plan within eight weeks. That is, by the end of July. It did not do so until November. This was a further delay. This was not caused by the national shortage of EP’s and so was maladministration rather than service failure.
26. As a result of the Council’s failure to complete the assessment process and issue a final EHC Plan within 20 weeks, by 30 April, Miss X suffered distress and uncertainty and was put to time and trouble in chasing the Council to complete the statutory process. The Council has accepted it did not meet statutory timescales and has apologised to Miss X for the delay. While this goes some way towards remedying the injustice caused, I have made further recommendations below.
27. The Council has already taken action to improve the timeliness of the EHC process. So, I am not making service improvement recommendations in this case.
28. In line with our guidance on remedies, I recommend a symbolic payment of £100 per month for each month of delay outside the statutory timescales, up to the point Miss X received a final EHC Plan which brings a right of appeal

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Agreed action

29. Within one month of my final decision the Council will:
1. write to Miss X and apologise for the frustration and uncertainty caused by the delays in the EHC process; and
2. pay Miss X £100 per month of delay, calculated from 30 April 2024, until the final EHC Plan was sent in November.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have found fault by the Council causing an injustice to Miss X and Y. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman