Summary: We have found fault (service failure) with the Council for failing to process Mrs X’s son’s Education, Health and Care Plan within the statutory timescales. This caused Mrs X uncertainty and frustration. The Council has agreed to remedy Mrs X’s injustice.

The complaint

1. Mrs X complained that the Council delayed her son’s Education, Health and Care (EHC) needs assessment and issuing her son’s EHC Plan. She said this caused distress and uncertainty regarding his educational placement. She also complained the Council refused to escalate her complaint to stage two of the complaints process.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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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What I have and have not investigated

4. I have not investigated matters that occurred after Mrs X brought her complaint to me. I have investigated the period from March 2024 until November 2024.

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How I considered this complaint

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

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What I found

Law and guidance

Education, Health and Care (EHC) Plan

7. 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.

Timescales and processes for EHC assessment

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 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).

What happened

9. Mrs X’s son, Y has special educational needs (SEN). In March 2024, Mrs X asked the Council to carry out an EHC needs assessment. In April, the Council considered Mrs X’s request and decided not to undertake a statutory assessment. Following mediation, the Council agreed to assess Y in June 2024.
10. The Council said it requested advice from all the relevant professionals, including an Educational Psychologist (EP).
11. Mrs X complained to the Council in August 2024 about the delays in the process. The Council responded in September, stating the national shortage of EPs as the reason for the delay.
12. Mrs X asked the Council to escalate her complaint to stage 2 of the process. The Council responded and informed Mrs X that it had received the EP and was drafting the EHC Plan. It said because the EHC Plan process was ongoing, it would not explore her complaint further.
13. The Council issued Y’s draft EHC Plan in November. Mrs X brought her complaint to the Ombudsman a week later.

Update

14. The Council wrote to Mrs X in January 2025. It apologised for the delays and poor communication. It offered a remedy of £400 in recognition of the delays and an additional £150 for having to notify the Council again, in order to move the situation along. Mrs X did not accept this offer.
15. The Council issued Y’s final EHC Plan a few days later.

My findings

Delayed EHC Plan process

16. I have found the Council at fault (service failure) for the delay in completing the statutory assessment process for Y’s EHC Plan. This caused Mrs X the injustice of uncertainty and frustration. In line with our guidance on remedies, I have recommended the Council make a symbolic payment of £100 for each month outside the statutory timescales.
17. The Plan was delayed 4 months (from the date the Council should have issued it until the date it was issued). This equates to £400.

Complaint process

18. The Council’s corporate complaints policy states that progression to stage 2 is not automatic. It states that upon receiving a complainant’s request to escalate the complaint, the Council will notify the complainant within 5 working days whether:
• It will issue a further stage 1 response,
• It will investigate the complaint at stage 2, or
• The Council has completed its consideration of the complaint.
19. It took over a month for the Council to notify Mrs X of its decision to not escalate her complaint. This delay added to Mrs X’s frustration.
20. I found no fault with the Council’s decision not to escalate Mrs X’s complaint, this was the Council’s decision to make. However, it did not notify Mrs X within 5 days in line with its policy. This was fault. The Council has agreed to apologise to Mrs X and pay her £150 in recognition of the time and trouble it has taken her to pursue her complaint.

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Agreed action

21. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for the delay in processing her son’s EHC Plan within statutory timescales, and delay in notifying her of its decision to not escalate her complaint to stage 2.
2. Pay Mrs X £400 in recognition of the uncertainty and frustration caused by the delays.
3. Pay Mrs X £150 in recognition of the time and trouble it has taken her to complain.
22. The Council should provide us with evidence it has complied with the above actions.

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Final decision

23. I have found the Council at fault (service failure) for the delay in completing the statutory assessment process for Y’s EHC Plan. This caused Mrs X the injustice of uncertainty and frustration at the delay.

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Investigator's decision on behalf of the Ombudsman