Summary: The Council was at fault as it delayed completing an education, health and care needs assessment and subsequently delayed issuing a final Education, Health and Care (EHC) Plan for Miss X’s child, Y. It delayed responding to Miss X’s complaints. Furthermore, the Council did not take any action in response to Y being on a reduced timetable at school. The Council has agreed to make a symbolic payment to Miss X and apologise to her for the distress and frustration the matter caused her. The Council will also make service improvements to prevent a recurrence of fault.

The complaint

1. Miss X complained the Council:
• delayed completing an education, health and care needs assessment for her child, Y; and
• delayed responding to her complaints.
2. Miss X said the school placement was not suitable for Y’s needs and as a result, they received a part-time education for several months. Miss X said it caused her distress and frustration. The Council acknowledged some fault and offered Miss X a remedy. However, Miss X wants the Council to reconsider its remedy.

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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. 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)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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 considered information provided by Miss X.
9. I considered information provided by the Council.
10. I considered our ‘guidance on remedies’.
11. Miss X and the Council had the opportunity to comment on the draft version of this decision. I considered any comments received before making a final decision.

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What I found

Education, Health and Care (EHC) Plan

12. Some children and young people with special educational needs and disabilities will have an EHC Plan. The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

EHC needs assessment

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 assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. 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;
• 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); and
• 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.

Advice and information for EHC needs assessment

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

The Council’s complaints procedure

15. The Council has a two-stage complaint process. At stage one, the Council aims to respond to a complainant within 20 working days. If this is not possible, the Council will keep the complainant informed and when it is likely to provide a complaint response.
16. If the complainant is unhappy with the Council’s initial response, they can ask the Council to investigate it further under stage two of its process. The Council aims to respond to stage two complaints within 20 working days or within 65 working days for more complex cases.

What happened

17. Miss X’s child, Y, has a neurodevelopmental condition and a physical disability which affects their learning development. Y attended a mainstream primary school.
18. In April 2023, the School on the behalf of Miss X, completed and submitted a request form to the Council for an education, health and care needs assessment as they felt Y was not able to progress with their education at the school.
19. In early November 2023, the School contacted the Council and asked it for an update on the assessment request it had submitted. The Council told the School it had not received a request. The School sent the Council its request form it had completed previously.
20. In early January 2024, the Council wrote to Miss X and said it had decided to proceed with completing an education, health and care needs assessment with Y.
21. In mid-April 2024, Miss X asked the Council for an update on the assessment process. She also told the Council Y was not coping at school and as a result, the School had placed Y on a reduced timetable.
22. A few days later, an educational psychologist visited the school and assessed Y. Following this, Miss X asked the Council when it would make a decision on whether to issue an EHC Plan. The Council told Miss X it was unable to provide her with an expected date of its decision as it was still waiting for the report from the Educational Psychologist.
23. Towards the end of April 2024, Miss X complained to the Council and said Y:
• had been waiting for over a year for an EHC Plan;
• was really struggling at the school; and
• had now been on a reduced timetable for five weeks.
24. Miss X wanted the Council to issue Y an EHC Plan and provide her with a financial remedy for the injustice it had caused her.
25. In early-May 2024, the Council received the report from the Educational Psychologist and told Miss X. In early-June 2024, the Council told Miss X it had decided to issue Y an EHC Plan.
26. In mid-July 2024, the Council issued a draft EHC Plan. Miss X wanted Y to go to a specific specialist school. At the same time, the Council sent consultations out to schools including Miss X’s preferred choice. In early-August 2024, the Council issued a final EHC Plan naming Miss X’s preferred choice of school.
27. In early September 2024, the Council responded to Miss X’s complaint. It apologised for its delayed response and recognised it had delayed issuing a final EHC Plan. It apologised for the anxiety and frustration this had caused to Miss X.
28. Soon after the Council’s response, Miss X responded to the Council and said it had failed to consider her request for a financial remedy. She said the Council’s delayed assessment had caused her distress and she reiterated Y had been receiving a part-time education at the previous school.
29. In early November 2024, the Council responded to Miss X and said it:
• was currently working through a backlog of complaints and explained this was the reason for its delayed initial complaint response;
• recognised it had delayed completing the assessment and had apologised for this in its previous response;
• should have issued a final EHC Plan by mid-April 2024;
• acknowledged Y was struggling at their previous school. However, the Council said until it issues an EHC Plan detailing specialist provision, it does not have a duty to provide specialist provision. It said provision which may be required before the Council issues an EHC Plan would be identified and provided by the School through its special educational needs support; and
• offered Miss X £300 for the delay in completing the assessment.
30. Miss X remained unhappy and complained to us.
31. In response to my enquiries, the Council said:
• although it received the School’s request for an assessment early November 2023, it did not process it until the end of November 2023 due to staff shortages;
• the overall delay of completing the assessment was caused by staff shortages including staff sickness and delayed advice from the Educational Psychologist;
• it became aware Y was on a reduced timetable when Miss X told the Council in mid-April 2024. The Council said it did not monitor or review the matter;
• it accepted in addition to its delayed initial complaint response to Miss X, it had also delayed responding to her further complaint.

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Findings

32. Miss X said the School submitted a request for an education, health and care needs assessment in April 2023. The Council said it did not receive a request at that time. I acknowledge the School completed a form supporting a request for an assessment however, there is no supporting evidence which shows the Council received it. It would be unfair to be critical of the Council not taking any action since April 2023 therefore, I cannot make a finding of fault.
33. The School sent the Council its previous request form in early November 2023. I note the Council said it delayed processing the request and did not do so until the end of November 2023 however, any delay I have considered is from early November 2023 as the Council had seen the request then.
34. The School requested an assessment in early November 2023 which the Council agreed to complete. In line with statutory guidance, the Council should have issued its decision letter in mid-December 2023 however, it did not do so until early January 2024. I recognise the delay at this stage was small however, the Council was still at fault and it caused Miss X distress and frustration.
35. Following its assessment, as the Council agreed to issue an EHC Plan, it should have issued a final EHC Plan by the end of March 2024, in line with statutory guidance. Instead, the Council issued the final EHC Plan in early August 2024. The Council was at fault. It delayed issuing the final EHC Plan by approximately four months. This caused Miss X distress, frustration and uncertainty particularly as Y was struggling at school at the time.
36. The Council recognised it delayed completing the assessment and apologised to Miss X. This was appropriate. It also offered Miss X a symbolic payment. However, I have made a recommendation for the Council to reconsider the amount.
37. Y was struggling in School and so the School put Y on a reduced timetable. As stated in paragraph five of this decision statement, we cannot look into the internal decisions of a school. Y’s school would have had its own duty to help reintegrate Y into school and so decided to implement a reduced timetable.
38. I note Miss X initially told the Council about Y being on a reduced timetable in April 2024. Miss X told us Y remained on the reduced timetable until the end of the academic year. The Council said it did not monitor or review Y’s reintegration plan. Although it was the School’s duty to help reintegrate Y into its setting, the Council should have monitored and reviewed the suitability of the arrangement. It also should have acknowledged the information from Miss X. The Council was at fault.
39. Furthermore, the Council delayed responding to Miss X’s complaints at stage one and two. It did not respond to Miss X’s complaints within reasonable time and it also did not follow its own complaints procedure. This was fault and caused Miss X distress and frustration. The Council recognised it had delayed responding to Miss X’s initial complaint and apologised to her. This was appropriate.
40. We recently made a decision which highlighted the Council had a backlog of complaint responses at stage one and two and that it had an action plan to manage it. The Council agreed to update us on its action plan. I have therefore not made further service improvements in relation to its complaint handling.

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Agreed Actions

41. Within one month of the final decision, the Council will:
• make Miss X a symbolic payment of £400 for the distress and frustration it caused her by delaying completing the education, health and care needs assessment and subsequently, delaying issuing the final EHC Plan. The amount of £400 includes the £300 it has already offered to Miss X. It equates to £100 per month of the delayed period;
• pay Miss X a further £100 for the distress and frustration it caused her by delaying responding to her complaint at stage one and two; and
• apologise to Miss X for the distress and frustration it caused her by delaying responding to her complaint at stage two and for not acknowledging Miss X’s concerns in relation to Y attending school part-time. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
42. Within three months of the final decision, the Council will:
• review with staff the importance of following the statutory guidance when it receives a request for an education, health and care needs assessment;
• provide us with a plan of what action it is taking or will take to resolve its issues with staffing; and
• review with staff that it should monitor or review a situation where a child is attending school on a part-time timetable due to challenges.
43. The Council will provide us with evidence it has complied with the above actions.

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Final Decision

44. I have now completed my investigation. The Council was at fault. It has agreed to my recommendations to remedy the injustice caused and prevent a recurrence of fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman