Summary: Mrs X complained the Council delayed beginning her child’s Education, Health and Care Needs Assessment and issuing their Education, Health and Care Plan. She said it also delayed in responding to her complaint. We found the Council was at fault for some of the delays. The Council agreed to apologise to Mrs X and make a payment to her, and another for her child’s benefit, to remedy the injustice caused in terms of uncertainty, frustration, and unmet needs.

The complaint

1. Mrs X’s child, Y, has special educational needs. Mrs X complained that the Council:
• delayed beginning Y’s Education, Health and Care Needs Assessment (EHCNA) following the conclusion of her appeal to the Tribunal;
• was at fault in the process of consultation during the EHCNA;
• failed to issue the Education, Health and Care (EHC) Plan within the statutory timescale; and
• delayed responding to her complaint at Stage 2 of its corporate procedure.
2. As a result, Mrs X complained she has been caused unnecessary uncertainty and her child’s needs had not been met for longer than should have been the case. She would like the Council to apologise and provide a suitable remedy.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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)
6. 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)
7. We do not start or continue an investigation if we decide any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
8. 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.
9. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter (Local Government Act 1974, section 26(6)(a), as amended). However, complaints where a council has not followed a Tribunal decision are in our jurisdiction because the Tribunal does not have powers to follow up its own final orders.
10. 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)
11. 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

12. I have considered Mrs X’s written complaint and supporting papers, and talked to Mrs X’s representative, Ms Z, about the complaint.
13. I shared a draft of this decision statement with Mrs X (via Ms Z) and the Council for their comments before I made my final decision.

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What I found

Legal and administrative background

Education, health and care plan

14. 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 SEND Tribunal or a council can do this.

Timescales and process for EHC assessment and planning 

15. 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 SEND Regulations 2014. It says the following: 
• Where the council receives a request for an EHCNA 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. 
• 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 – see paragraphs 18 and 19 below).
• 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.

Appeal rights

16. The SEND Tribunal considers appeals against council decisions regarding special educational needs.
17. There is a right of appeal to the SEND Tribunal against a council’s:
• decision not to carry out an EHCNA or reassessment.
• 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;

Implementing SEND Tribunal orders

18. The SEND Regulations 2014 say that when the SEND Tribunal requires a Council to make an assessment, the Council should notify the child’s parent, within two weeks of the order being made, that it will make the assessment.
19. Following the assessment, if the Council decides that it is necessary for special educational provision to be made for the child, in accordance with an EHC Plan, it must issue the finalised Plan within 14 weeks of the date of the SEND Tribunal’s order.

Advice and information for EHCNAs

20. 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. 

21. Those consulted have a maximum of six weeks to provide the advice. 
22. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

What happened

23. The SEND Tribunal issued an order on 29 November 2023 that the Council should carry out an EHCNA of Y. The Council confirmed it would assess Y during a telephone call with Mrs X on 12 December 2023. The Council also sent requests for advice to relevant services, including the educational psychology (EP) service, Y’s middle school, and a variety of health and social care services, on 12 December 2023.
24. The Council issued the draft EHC Plan for Y in mid-September, four months after the Council had received the EP report. The Council issued Y’s final EHC Plan on 14 November 2024.
25. The final EHC Plan identified that Y has needs in many areas. It noted that Y has a diagnosis of autism with associated learning difficulties, along with concerns about co-ordination and sensory processing. Y has difficulties with social communication and rigidity of thinking. In school, Y was assessed to be working well below the expected level for their age and stage, across the curriculum. The final Plan included 20 hours of support from a teaching assistant per week, in a mainstream school. It also included a SALT programme

The complaint

26. Mrs X complained that, during the EHCNA process, the Council had initially sent the advice request to Y’s infant school, but Y had started at middle school in September 2023. She said despite correcting the error the Council did not consult with the correct SEN co-ordinator until May 2024 and the Council had already exceeded the statutory timescales by the time it commissioned the EP. She also complained the Council had failed to consult a Speech and Language Therapist (SALT) and asked the Council to carry out an independent Occupational Therapy (OT) assessment.
27. In its responses to Mrs X’s complaints, the Council acknowledged that it sent the request to the infant school on 11 December 2023, but said that as soon as it had been advised of the error, it had sent the request to the correct school on 12 December. It added that when it did not receive a response, it re-sent the request on 14 March 2024 and received a response in April.
28. It accepted its keyworker should have asked Mrs X who she was working with in each service so it could consult the correct people. The Council said its keyworker had failed to chase up outstanding responses to requests for advice. The Council said it would address these matters with the keyworker.
29. The Council also said that schools are not typically consulted with until there is a draft plan to send, and that in this case, the draft was shared with the school when it was issued in September 2024.
30. The Council acknowledged the delay in issuing the EHCP and apologised for it. It said the delay was due to a national shortage of EPs. The EP report was provided on 15 May. The Council acknowledged that, because Y’s assessment was directed by the SEND Tribunal, the EP service should not have assigned this case to a locum EP. The Council said it would address that with the EP service.
31. The Council said that it had sent the request for advice to the SALT service, but that service had said there was no further role for them. In her stage 2 complaint, Mrs X asked the Council to re-consider the provision of this service. Y’s final EHC Plan, issued on 14 November 2024, included the provision of a SALT programme.
32. The Council added that the Council’s Decision-Making Group had considered the request for an OT assessment in March 2024. That group had decided that the July 2023 OT assessment was sufficiently recent to inform Y’s EHC Plan.
33. Both Council complaint responses were sent after 40 working days.
34. Mrs X remained unhappy and complained to the Ombudsman. Ms Z told me on behalf of Mrs X that, whilst they were waiting for Y’s Plan to be issued, Y’s school was unable to support them adequately. This because Y was not receiving dedicated provision in the form of support from a teaching assistant. Y struggled to attend school, was often overwhelmed and distressed, and could cope only with a reduced timetable.

My findings

Delay in confirming and commencing assessment following Tribunal

35. As set out at paragraph 18, the Council should notify parents within two weeks of the date of the SEND Tribunal’s order that it will carry out the assessment. The Council notified Mrs X by telephone and by email on 12 December, two weeks after the SEND Tribunal order. The Council was not at fault.
36. Whilst the SEND Regulations do not specify when the assessment should commence, they do say that “the process of assessing needs and developing EHC Plans ‘must be carried out in a timely manner’”. The Council sent requests for advice to relevant services on 12 December, the same day it agreed to assess Y. The Council was not at fault.

Delay during the EHCNA process

37. The Council accepts it should have chased Y’s SEN Co-ordinator when they failed to respond to its request for information. This delay was fault, causing Mrs X uncertainty and frustration whilst she chased an outcome. The Council has since provided training for the keyworker who worked on Mrs X’s case.
38. The Council’s told Mrs X that “schools are not typically consulted with until there is a draft plan to send”. This is incorrect, and is fault. Information gathering from the child’s school during the assessment stage is a mandatory part of the EHC planning process and is separate from consultation with the school on the draft Plan. However, as the Council did consult with Y’s school during the assessment stage the fault did not cause injustice to Mrs X or to Y.
39. In order for the Council to issue Y’s final EHC Plan by the statutory deadline of 6 March, it would need to have received the EP report by 7 February. The EP report was provided on 15 May, a delay of three months. The delay was caused partly by the national shortage of EPs, which is service failure, and partly by the Council’s failure to advise its EP service not to give the case to a locum, which is maladministration. I cannot say Y missed out on specialist provision prior to the Council receiving the EP report as Y's needs, and the provision required to meet those needs, were not yet known. However, the delay did cause Mrs X the injustice of uncertainty, frustration, and distress.
40. In response to our enquiries the Council has explained the steps it is taking to recruit more EPs. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.
41. Mrs X also complained about the Council’s failure to consult appropriately with SALT services and the lack of OT assessment. Mrs X had a right of appeal to the SEND Tribunal over the content of Y’s EHC Plan, the content of which was informed by the services consulted, and I consider it reasonable for her to have used it. We cannot investigate a complaint when someone has a right of appeal. I have not investigated these complaints further.

Delay in issuing Y’s final EHC Plan

42. As set out at paragraph 19, the Council must issue the finalised Plan within 14 weeks of the date of the SEND Tribunal’s order, which in this case would have been 6 March 2024. I have already dealt with the delay in obtaining the EP report (and in gathering the other elements that contributed to the assessment, such as the SEN Co-ordinator’s advice). Once the EP report was provided to the Council in May 2024, the Council should have continued to follow the relevant timescales to produce a draft Plan for consultation followed by the issuing of the final EHC Plan within six to eight weeks, that is by the mid-July at the latest.
43. Y’s EHC Plan was issued on 14 November. This further delay of four months caused was fault. Had the Council acted without fault, it would have issued Y’s EHC Plan in July and Y would have received the provision set out in their Plan from then on. Although provision was made available to Y within their mainstream school during the period of delay, Y was unable to access that provision on a full-time basis without the support included within the EHC Plan.
44. The Council’s fault meant that Y missed out on the provision agreed in the EHC Plan between mid-July and mid-November (a little more than one half term).

Delay in the complaints procedure

45. The Council’s policy says that responses at stage 1 should be provided within 20 working days, and within 25 working days at stage 2. The delays were fault, that caused Mrs X the frustration of being unable to escalate her complaint until a response was received.

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Action

46. To remedy the injustice caused by the identified faults, the Council should, within four weeks of my final decision:
• Apologise to Mrs X and to Y for the injustice caused by the faults identified above. The apology should be made in line with our published guidance on making an effective apology.
• Make symbolic payments to Mrs X of:
1. £300 to recognise the uncertainty, avoidable distress and frustration caused by the delay between February and May 2024 in obtaining advice from professionals to inform the draft Plan for Y;
2. £800, for Y’s benefit, to recognise Y’s loss of provision in line with their EHC Plan between mid-July and mid-November 2024 (just over half a term) caused by the delay in issuing the final Plan after EP advice had been obtained.
47. These payments are symbolic amounts in line with our published guidance on remedies.
48. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman