Summary: Miss X complains the Council failed to deliver her daughter J’s Education, Health and Care Plan in line with statutory timescales. We find fault with the Council for delay, and have agreed a symbolic payment for the distress and frustration caused to Miss X.

The complaint

1. Miss X complains the Council failed to deliver her daughter J’s Education, Health and Care Plan in line with statutory timescales, and the communication from the Council was poor.
2. Miss X would like the Council to apologise and give her compensation. She wants to ensure this does not happen to 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. 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)
5. 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.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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

8. I spoke with Miss X and considered the information she provided.
9. I made enquiries with the Council and considered the information it provided.
10. I considered relevant law and guidance, as set out below and our guidance on remedies, published on our website.
11. Miss 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

Legal and administrative background

Education, Health and Care Needs Assessment

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 needs 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. 
13. 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).  
14. As part of the assessment councils must gather advice from relevant professionals.

Education, Health and Care Plan

15. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.
16. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.

Alternative provision

17. Councils have a duty to arrange the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. (Section 19 of the Education Act 1996)
18. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
19. There is no legal deadline to start provision; it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. Some forms of provision (such as one-to-one), which is intensive, need not be full-time. Provision must be similar to what is offered in school. (Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013)

Service failure

20. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

Council’s complaints procedure

21. The Council has a two stage complaints procedure:
• Stage one – a response from a manager within 20 working days.
• Stage two – a response from the Corporate Complaints manager within 20 working days.

What happened

22. Miss X has a daughter J who is at secondary school. Miss X says J stopped attending school in January 2024 due to the school being unable to meet her needs.
23. In late August 2023 Miss X contacted the Council to request an Education, Health and Care Needs Assessment (EHCNA). The Council agreed to the assessment the next day and wrote to Miss X saying it would respond by 10 October.
24. The Council wrote to Miss X on 18 October saying it agreed to the request and would contact again by 18 December to say whether it would issue an EHC Plan.
25. On 5 December the Council told Miss X it agreed to issue an EHC Plan, but it was awaiting the report from the Educational Psychologist (EP). Once received it would update Miss X when the draft EHC Plan would be issued.
26. The Council received a request for S19 education to be provided to J on 6 December 2023. It said since no medical evidence was provided, it did not agree to the S19 request.
27. Miss X asked the Council for S19 provision on 2 January 2024 saying the school could not meet her needs.
28. The Council attended various meetings with the school and Miss X between January and March 2024 exploring alternative provision for J. It agreed a custom timetable with the school on 25 March.
29. Miss X made a complaint to the Council at the end of March as she still had not received the EHC Plan. The Council responded on 10 May upholding her complaint. She made a stage two complaint in May.
30. The Council received the EP report on 23 April and sent the draft EHC Plan to Miss X on 21 May.
31. Miss X responded with her amendments on 4 June and gave a different special school in section I.
32. The Council’s stage two complaint response in June upheld Miss X’s complaint. It said it considered Miss X’s requests for places at special schools but J was not accepted due to her behaviour not meeting the criteria for a place. The referral for home tuition in December was not accepted as there was no medical support to show J was too ill to attend school. The Council have had several meetings and J’s school has discussed custom time tabling, reduced hours and 1:1 support.
33. On 15 July the Council told Miss X that after enquiries the special school she had suggested was full. The next contact was on 3 September when the Council arranged a telephone call with Miss X to discuss her response to the draft EHC Plan.
34. After the telephone call the Council sent consultations out to the agreed special schools. The special school Miss X wanted was still full, but had space for S19 alternative provision, which would mean J would have to stay on the mainstream school roll for this to take place.
35. On 26 September the Council spoke with Miss X and apologised for the lack of communication and to put forward an action plan to move forward. It said it would issue the EHC Plan by 4 October 2024.
36. The Council issued the EHC Plan on 6 February 2025.
37. Miss X brought her complaint to the Ombudsman as she did not feel the Council adequately addressed her concerns.
38. In response to my enquiries the Council has confirmed the action it is taking to reduce delays caused by the shortage of EP’s. It has allocated financial resources to expand the Educational Psychology team to ensure it can not only keep up with demand but also offer early intervention and preventive work. The Council says it has recruited two trainee EP’s and widened its associate pool to work on the backlog of assessments.
39. The Council says it has reviewed and refined the supervision and support for all its EHCP coordinators across the service to ensure they can fulfil their duties.
40. J is now attending the same school which Miss X says is suitable, and will be starting college in September.

Analysis

EHCNA

41. 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 (see paragraphs 12 and 13).
42. The Council should give the assessment decision within six weeks, here there was a delay of 8 weeks. The draft EHC Plan should have been issued in December 2023, and it was issued in May 2024, a delay of five months. The final EHC Plan should have been issued in January 2024, and it was issued in February 2025. This is a delay of over a year.
43. Councils must seek EP advice as part of an EHC assessment. This should be received within six weeks of the council requesting it. The delay in receiving the advice is due to a nationwide shortage of EP’s. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons why the EP advice took longer than it should have, the delay was nonetheless fault.
44. The Council received the EP report in April 2023, but it still took another 13 months for the Council to finalise the EHC Plan. The delay is fault causing Miss X and J frustration, distress and uncertainty. It also delayed Miss X’s right of appeal.

S19 Alternative Provision

45. Miss X made a S19 request to the Council in December 2023 and January 2024. There was no medical evidence with the December request so I do not find fault with the Council.
46. After the January S19 request the Council attended meetings with the school and agreed in March 2024 a part time timbale for J. I do not find fault with the Council as it oversaw the provision with the school, and provided funding for alternative provision at a special school. The school provided a custom package to reintegrate J.

Complaint

47. The Council’s complaint procedure says the stage one complaint will be responded to within 20 working days (see paragraph 21). The Council responded after six weeks. This is fault by the Council causing frustration to Miss X.

Remedies

48. I am aware we have made service improvements to this Council on a similar case recently (24001504). It is clear the Council is experiencing issues which it is addressing. I am satisfied the service improvements agreed on the other complaint also address the issues from this complaint, and the Ombudsman will continue to follow up with the Council on any previously agreed service improvements and we will monitor the impact of these changes through our complaints.

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Recommended Action

49. Within one month of the final decision the Council should:
• apologise to Miss X for the delay with the complaint response and delay in the EHC Plan process, causing distress, frustration, and uncertainty. We have published guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• pay Miss X £1300 to acknowledge the distress, frustration and uncertainty caused to her and J by its failure to issue the final EHC Plan in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan in January 2024 until the date it was issued in February 2025.
• pay Miss X £200 for the distress and frustration caused because of the faults above. This is a symbolic amount based on our Guidance on Remedies.
• The total payment to Miss X is £1500.
50. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman