Summary: Mr X complained the Council incurred delays in providing an Education, Health and Care Plan for his son. Mr X says the Council’s actions caused avoidable distress and frustration and hindered his son’s access to appropriate support and provision. We found fault by the Council. The Council has agreed to issue the final Education, Health and Care Plan and provide an apology and financial remedy to Mr X. The Council has also agreed to provide regular reports to Cabinet and other appropriate senior committees regarding the progress made by its Special Educational Needs and Disabilities service following its restructure, investment and recruitment measures.

The complaint

1. Mr X complained the Council incurred delays in providing an Education, Health and Care Plan for his son. Mr X says the Council’s actions caused avoidable distress and frustration and hindered his son’s access to appropriate support and provision. He says the delays have also negatively impacted his son’s educational progress and wellbeing. Mr X would like the Council to issue the final Education, Health and Care Plan, provide an apology and financial remedy, and take action to improve its services regarding the assessment and issuance of Education, Health and Care Plans.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
5. Mr X and the Council had an opportunity to comment on a draft of this decision. I considered any comments before making a final decision.
6. 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

Education, Health and Care Plans

7. A child or young person with special educational needs (SEN) 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. 
8. 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 must take no more than 20 weeks (unless certain specific circumstances apply);  
9. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 
• the child’s educational placement; 
• 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. 

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

10. There is a right of appeal to the Tribunal against a council’s:
• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue an EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.
11. 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 a final EHC Plan has been issued.

What happened

12. This chronology includes key events in this case and does not cover everything that happened.
13. Mr X asked the Council to carry out an EHC needs assessment for his son, Y, on 6 September 2023.
14. On 13 November 2023, the Council wrote to Mr X confirming its decision to carry out an EHC needs assessment. The Council told Mr X it would initiate the needs assessment process immediately; it requested advice from relevant professionals, (including an EP) on the same day.
15. Mr X complained to the Council on 13 February 2024 stating the Council had exceeded the 20-week statutory timeframe regarding the issuance of Y’s EHC Plan. Mr X also raised concerns about the Council’s resource allocation and case management and said this may have contributed to the delay.
16. The Council provided its complaint response on 5 March 2024. It said there is a national shortage of EPs, and the Council was struggling to manage the demand for EP assessments with its current resources. The Council said it had trialled several initiatives to try to reduce the impact, and it had secured additional capacity from an agency to try to relieve some of the backlog. The Council apologised for the delay and confirmed it had recently allocated Y’s case for an EP assessment.
17. The EP assessment took place at about the same time. The Council said it received the EP assessment on 5 April 2024.

Mr X’s complaint

18. Mr X complained to the Council again on 21 April 2024 about the delay in issuing the EHC Plan. Mr X said the Council had received the relevant documents, including the EP assessment, but it had not provided any further updates on the progress of Y’s case. Mr X said the ongoing failure to provide support to Y hindered his educational progress and wellbeing.
19. The Council acknowledged receipt of the complaint on 22 April 2024 and said it was evident the Council had failed to complete the EHC Plan assessment within the statutory timeframe. The Council agreed to consider Mr X’s complaint but said the complaint procedure was unable to expedite the EHC Plan process.
20. On 29 April 2024, the Council decided to issue an EHC Plan for Y.
21. The Council issued a draft EHC Plan on 9 May 2024.
22. On 21 May 2024, the Council provided its complaint response and apologised for the delay in the EHC Plan process. It said the Council’s Special Educational Needs and Disabilities (SEND) service was experiencing an unprecedented volume of EHC needs requests, and the capacity within the team to meet demand was therefore compromised. The Council said the national shortage of EPs meant it was struggling to manage demand for EP assessments within current resources. However, the Council said it had trialled a range of initiatives to help manage demand.
23. Mr X escalated his complaint to stage two on 7 June 2024. He said the Council had failed to issue the final EHC Plan despite receiving his comments on the draft. Mr X said the SEND team had not provided adequate updates and had not indicated when the final EHC Plan would be issued. Mr X asked the Council to improve its communication with him, review the provision and issue the final EHC Plan.
24. The Council responded on 10 June 2024. It said stage two of its complaint procedure was to determine whether there was any procedural fault; the Council said it could not examine the content of the EHC Plan, or direct case management as part of the complaint process. The Council said it could review Mr X’s complaint once it had issued the final EHC Plan, as the full extent of the delay would then be known. It said if, when the final EHC Plan was issued, Mr X was unhappy with its content, he had the right of appeal to the Tribunal.
25. The Council issued an amended draft EHC Plan on 2 August 2024. The Plan recorded that Mr X had requested an education otherwise than at school (EOTAS) package to encompass both mainstream school provision and EOTAS provision.
26. Mr X asked the EP to amend their advice to make it more specific. The Council received the amended EP assessment in late September 2024.
27. Mr X remained dissatisfied with the Council's complaint response and brought his complaint to us in late October 2024.

What happened next

28. The Council wrote to Mr X in December 2024 to inform him it had declined his request for an EOTAS package.

Analysis

29. The statutory guidance is clear regarding the timescales that local authorities must adhere to when carrying out an EHC needs assessment.
30. Where the council receives a request for an assessment, it must decide whether to agree to the assessment and send its decision notification within six weeks. The Council failed to issue its decision notification to Mr X within six weeks of his request for an assessment. This is fault.
31. The Council failed to decide whether to issue an EHC Plan, (or refuse to issue it) within 16 weeks. This is not in accordance with the statutory guidance and is therefore fault.
32. The guidance says that where council’s go 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). The Council has still not issued the final EHC Plan for Y. This is a significant delay; currently, the final EHC Plan is more than 67 weeks overdue. The failure to issue the final EHC Plan within the statutory timeframe is fault.
33. This fault caused an injustice to Mr X and Y, namely uncertainty regarding the provision specified in the EHC Plan, and distress and frustration at the delays in the process. In addition, the current lack of a final EHC Plan has frustrated Mr X’s right of appeal to the Tribunal regarding the content of the Plan, including the Council’s decision to decline an EOTAS package.
34. I acknowledge the Council’s comments that a national shortage of EPs contributed towards the delay in this case. However, the delay regarding Y’s EHC Plan cannot be solely attributed to a lack of EP advice. This is because the Council received the EP assessment in April 2024 but has still not issued the final EHC Plan, more than 12 months later.
35. I acknowledge the Council’s apology to Mr X as part of the complaint process. However, this does not fully address the injustice to Mr X and Y. The Council should have issued the final EHC Plan by 24 January 2024 (20 weeks after Mr X’s request for an assessment). Although the final EHC Plan is still outstanding, we can only recommend a remedy for any injustice caused by the delay up to the point the complaint is brought to us. In this case, this is late October 2024. This equates to a period of nine months, (January to October 2024).

The Council’s enquiry response

36. I acknowledge the Council’s comments that its SEND service has undergone a significant period of change over the last 12 months. This includes a large financial investment to, and restructure of its SEND team, with the recruitment of 39 new team members, a change of data system and the mapping and refinement of its processes.
37. The Council says it is working through its backlog recovery plan, and it is increasing the number of EHC Plans finalised each month. However, as part of its response to our enquiries, the Council has confirmed it currently has more than 750 assessments recorded as having gone beyond the 20-week statutory timeframe. Whilst it is positive the Council has taken steps to address the backlog of cases, this has not yet resolved the ongoing issues regarding the provision of a final EHC Plan for Y.

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Action

38. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mr X and Y. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
2. Issue the final Education, Health and Care Plan for Y, and
3. Make a symbolic payment of £900 to Mr X in recognition of the uncertainty and frustration caused. This equates to £100 per month for the period from January to October 2024.
39. I recommend the Council takes the following additional action over a period of six months from the date of the final decision:
1. Provide regular reports to Cabinet and other appropriate senior committees regarding the progress made by the Council’s Special Educational Needs and Disabilities service following its restructure, investment and recruitment measures.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I have found fault causing injustice. The Council has agreed to take the above action to remedy the injustice identified and I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman