Summary: The Council delayed completing Mrs X’s child, Y’s, Education, Health and Care Plan. This caused Y to miss two and a half terms of Special Educational provision and caused Mrs X frustration, distress and uncertainty. The Council should apologise, make a payment to Mrs X and develop an action plan to address the delays.

The complaint

1. Mrs X complained the Council delayed issuing her child, Y’s, Education, Health and Care (EHC) plan and failed to consider all the appropriate information when completing the plan. She says this has caused her distress and uncertainty and delayed her Y’s access to the provision in the EHC plan. She wants the Council to apologise and compensate her for the impact of the delay.

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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. 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)
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)
4. 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 have and have not investigated

5. 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. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. There is a right of appeal to the Tribunal against a council’s 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.
8. Mrs X complained about the quality of the Educational Psychologist advice used for Y’s EHC Plan. Mrs X had a right of appeal to the Tribunal over the content of Y’s EHC Plan, and by extension, the advice used for the Plan. I consider it reasonable for Mrs X to have used her right of appeal and so have not investigated this aspect of her complaint.

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How I considered this complaint

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

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What I found

Education, Health and Care (EHC) Plans

11. 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 SEND Tribunal or the council can do this. 
12. 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. 
• 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 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.

13. 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. 

14. Those consulted have a maximum of six weeks to provide the advice. 
15. 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

16. The Council received a request for an EHC needs assessment for Y in December 2023. It refused the request within the statutory period of six weeks. Following mediation, the Council agreed to assess Y on 4 March 2024 and commissioned professional advice for the Plan. This included advice from an Educational Psychologist (EP).
17. The Council agreed to issue an EHC Plan for Y on 16 May 2024. In July 2024 Mrs X asked the Council if it could include a new Speech and Language (SALT) report for Y in the draft EHC Plan. The Council agreed. The Council received the report in August 2024 and confirmed receipt to Mrs X. An EP updated Y’s draft EHC Plan in September 2024.
18. In October 2024 Mrs X complained to the Council. She said she had still not received a draft report, and she was unhappy with the quality of the EP advice. She added the Council had mistakenly referred to another child in its reports for the Plan.
19. In its complaint response the Council accepted it had missed the statutory deadline to issue Y’s final EHC Plan. It apologised for its error in sharing another child’s details. It said it would shortly issue a draft EHC Plan for Y and Mrs X could appeal the EP advice element of the Plan once it had issued the Final EHC Plan. However, it felt the EP amendments in September 2024 addressed Mrs X’s concerns.
20. Mrs X asked the Council to consider her complaint at stage two of its complaint process. She said she had still not received a draft EHC Plan and was unhappy the Council intended to name a mainstream school for Y. The Council issued a draft EHC Plan in late October 2024. Mrs X immediately contacted the Council to say it had not included the new SALT report in the Plan. The Council queried whether it had received the report. Mrs X shared the Council’s confirmation of receiving the report with the Council.
21. The Council issued a further draft EHC Plan in November 2024. Mrs X commented on the draft. The Council made further amendments and issued Y’s final EHC Plan on 17 December 2024. It named Y’s current mainstream school and offered Mrs X a right of appeal to the SEND Tribunal if she remained unhappy.
22. In January 2025 the Council responded to Mrs X’s stage two complaint. It accepted a 27-week delay in issuing Y’s final EHC Plan. It offered Mrs X £300 for the delay in issuing the Plan and £400 for the distress caused by the delay. Mrs X complained to the Ombudsman.

My findings

23. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council accepted the assessment request for Y in December 2023. It rejected the request within the six weeks the Council had to decide whether to assess Y or not. The Council was not at fault.
24. Following mediation, the Council agreed to assess Y on 4 March 2024. Having done so the Council should have issued Y’s EHC Plan within 14 weeks. This was 10 June 2024. The Council issued Y’s EHC Plan on 17 December 2024; a delay of six months. This was fault, causing Mrs X frustration, distress and uncertainty.
25. During the delay Y attended the school named in the final EHC Plan but did not receive the SEN provision outlined in the Plan for two and a half terms. We typically recommend between £900 and £2400 per term in recognition of lost provision. The figure can be lower when considering any educational provision made during the period and whether additional provision can remedy some or all of the loss.
26. Considering Y was attending school during the period, but not receiving the provision in the EHC Plan, I have recommended £900 per term for the missed special educational provision, in line with our Guidance on Remedies.

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Action

27. Within one month of the final decision the Council has agreed to:
1. Apologise to Mrs X for the frustration, distress and uncertainty caused by its delay and Y’s missed provision. 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.
2. Pay Mrs X £200 to recognise the distress and frustration caused by the delay in issuing Y’s EHC Plan.
3. Pay Mrs X £2250 to recognise the impact of the loss of two and a half terms special educational provision on Y.
28. Within three months of the final decision the Council has agreed to develop an action plan to address delays in finalising its EHC Plans.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. I find fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman