Summary: Ms X complained the Council delayed issuing her child’s final education, health and care (EHC) Plan. The Council was at fault for failing to finalise the EHC plan within statutory timescales and this delayed Ms X’s appeal rights. The Council has agreed to make a payment to Ms X in recognition of the delay and take action service improvement action.

The complaint

1. Ms X complains the Council did not issue her child Y with an Education, Health and Care (EHC) Plan within legal timescales.
2. Ms X requests the Council reimburse her with school fees and travel costs associated with sending Y to the school that was later named on Y’s EHC Plan. Ms X also requests the Council review its processes to ensure that similar delays do not occur for another 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)
5. 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

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 a draft of this decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Education, health and care (EHC) Plans

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. 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. 
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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• 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.
• 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).  

10. 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. 

11. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  

What happened

12. On 12 January 2024, the Council received a request to assess Y’s Education, Health and Care (EHC) needs.
13. On 14 February 2024 the Council agreed to assess Y’s needs.
14. Following the assessment, on 24 May 2024, the Council refused to issue an EHC Plan for Y because it felt his needs could be met by resources already available at school and with the support of a SEN Support Plan drawn up by the school.
15. Ms X was unhappy with this decision and requested mediation.
16. On 26 June 2024, following correspondence from Ms X regarding mediation and clarification of the Panel’s decision to refuse an EHC Plan, the Council had a discussion with the EP who assessed Y’s needs. Following this discussion, the Council decided to overturn its decision and on 27 June 2024, the Council agreed to issue an EHC Plan for Y. It formally notified Ms X on 1 July 2024 that it would issue an EHC Plan. The Council did not provide reasons for changing its decision.
17. On 19 September 2024, the Council confirmed it would agree to maintain placement at the school and this would be reflected in Y’s finalised EHC Plan.
18. On 20 September 2024, Ms X requested the therapies in Y’s EHC Plan be delivered by the in-house therapists at the school. Ms X felt it would more effective this way rather than sending different therapists to the school. The Council advised Ms X it would use the therapists it has commissioning arrangements with to deliver the provision in Y’s EHC Plan.
19. On 14 October 2024 the Council issued Y’s final EHC Plan and provided Ms X with her appeal rights.
20. Ms X says in November 2024 the Council decided to commission therapies direct from the school and this contributed to the delay in issuing Y’s EHC Plan.

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Analysis

Delay in issuing Y’s EHC Plan

21. The Council decided Y did not require an EHC Plan and then changed its decision on 27 June 2024. The correspondence between Ms X and the Council shows the Council changed its decision after a discussion with the EP. If the Council’s Panel felt there was information outstanding it could have had this discussion with the EP during its original decision-making process. For this reason, I consider the original decision from the Council was fault and the statutory timescale for finalising Y’s EHC Plan starts from the date of the request for assessment. This means the Council should have issued Y’s final EHC Plan by 31 May 2024.
22. The timescale for an EHC needs assessment including issuing a final EHC Plan is a maximum of 20 weeks. The Council finalised the Plan on 14 October 2024. This is a delay of 19 weeks. This is fault.
23. Ms X chased the Council on several occasions for the draft which was delayed and also the final Plan. This caused frustration. The delays also meant Ms X’s appeal rights were delayed. To remedy this injustice the Council has offered Ms X £500. This remedy payment is in line with the Ombudsman’s Guidance on Remedies.
24. I have not made any recommendations for service improvements because the Council has, and is in the process of, implementing improvements recommended by the Ombudsman in relation to the EHC Plan process and statutory timescales. Therefore, to avoid duplication, I have not recommended any further service improvements.
25. Ms X has requested the Council pay for the school fees the family have incurred from 31 May 2024 to 14 October 2024 and associated travel costs. The Council has refused.
26. The Council’s responsibility to pay the school fees began when the EHC Plan was finalised and issued, not before. It is acknowledged there was a delay in finalising the EHC Plan and an appropriate remedy for this delay has been agreed by the Council.

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Agreed Action

27. To remedy the injustice caused by the delay is finalising Y’s EHC Plan, the Council has agreed that within four weeks of this final decision, it will:
• Pay Ms X the £500 it offered as a symbolic payment to acknowledge the delay in finalising Y’s EHC Plan. If the Council has already made this payment, it should provide the Ombudsman evidence of this; and
• Share the final decision with Council’s SEND Panel members and make them aware that to prevent delay, they should be satisfied they have all the information they require before making any decisions.
28. The Council will provide us with evidence it has complied with the above actions.

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Decision

29. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman