Summary: Mr X complained about the Council’s delay in assessing his child’s special educational needs and issuing an Education, Health and Care Plan. We found avoidable delay by the Council. The Council, which had already apologised, agreed to make a symbolic payment to Mr X in recognition of the avoidable distress caused by its delay.

The complaint

1. Mr X complained about the Council’s handling of his request for an Education, Health and Care needs assessment (EHCNA) for his child (‘C’ in this statement). Mr X said the Council failed to keep in touch while it delayed completing the assessment and issuing a final Education, Health and Care Plan (EHC Plan). The Council then delayed responding to his complaint about the matter.
2. Mr X said the delay had adversely affected C’s education and wellbeing and caused the family distress and financial loss.  
3. Mr X wanted the Council to accept it had not met its legal duties and to issue a final EHC Plan, naming a school placement for C. Mr X also wanted the Council to fund home schooling and support for C until it issued the final EHC Plan.

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The Ombudsman’s role and powers

4. 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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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(1), as amended)
7. 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

8. I considered evidence provided by Mr X and the Council. I also considered relevant law, policy and guidance. This included:

• the Special Educational Needs and Disability Regulations 2014 (the SEND Regulations); and
• the Government’s statutory guidance, the ‘special educational needs and disability code of practice: 0 to 25 years’ (the Code).

I gave Mr X and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Background

Special educational needs

9. A child with special educational needs (SEN) may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. 
10. The Code sets out the procedure for carrying out EHCNAs and producing EHC Plans. The Code is based on the Children and Families Act 2014 and the SEND Regulations, which in summary says: 

• when asked for an EHCNA, councils must decide whether to assess and send their decision to the child’s parent within six weeks; 
• the EHCNA and EHC Plan procedure “must be carried out in a timely manner” with steps completed as soon as practicable; 
• in assessing needs, councils must gather advice from relevant professionals, and they must provide that advice within six weeks,
• on assessing needs, councils must decide whether to issue or refuse to issue an EHC Plan within 16 weeks;
• if the decision is to issue, councils must give the child’s parents 15 days to comment on the draft EHC Plan and to express a preference for an educational placement; and
• from asking for an EHCNA to issue of a final EHC Plan must take no more than 20 weeks.

Council complaint procedure

11. The Council has a two-stage complaint procedure. In summary, at stage one the Council aims to respond within 10 working days or, if the complaint is complex, within 20 working days. People dissatisfied with their stage one reply have a month to take their complaint to stage two. The Council responds at stage two within 20 workings days. If the Council cannot meet its stage one and two response times, it will update the complainant at least every two weeks.

What happened

12. In Summer 2024 Mr X asked the Council to carry out an EHCNA for C. The Council agreed to assess C about two months later and then sought advice from various professionals. After a further two months, the Council to decide to issue an EHC Plan. Nearly three months later, the Council sent a draft EHC Plan to Mr X, who responded suggesting three possible school placements for C. Three months after that, the Council started to consult third parties about an educational placement for C. (None of the three schools suggested by Mr X offered C a place.)
13. Meanwhile, Mr X complained to the Council saying it had not met its legal duty to complete the EHCNA and issue C’s final EHC Plan within 20 weeks. The Council confirmed receipt of the complaint and, a month later, sent Mr X a holding reply. Later, Mr X asked his Member of Parliament (MP) for help in getting the Council to respond to the complaint. The Council sent its substantive response nearly five months after receiving Mr X’s complaint. The Council upheld the complaint accepting it had breached it legal duty. It also apologised for its delay in responding to Mr X’s complaint. The Council said it was addressing delays and communication issues by restructuring its service. It also offered Mr X £500 to recognise the stress and inconvenience caused by its delays.
14. Two months later and after Mr X had brought his complaint to the Ombudsman, the Council issued C’s final EHC Plan. As it contained an error, the Council issued a corrected final EHC Plan a month later. It was about sixteen months since Mr X had asked the Council for an EHCNA.

Consideration

15. There was no dispute the Council failed to meet the legal timescale for processing C’s EHCNA and issuing a final EHC Plan. And delay took place at each step of the EHCNA and EHC Plan procedure. In responding to us, the Council accepted it had no justifiable reasons for the delays although some time was lost when it reorganised its SEN services. The Council also accepted it had not kept in touch with Mr X about the delays.
16. Overall, the evidence showed that, rather than 20 weeks, it took around 68 weeks for the Council to complete the procedure. This meant it took the Council an added 11 months to issue C’s EHC Plan. The Council then identified an error in C’s final EHC Plan, which it had to correct. This added a further month to the total time taken by the Council. I recognised the Council faced increasing demand for EHCNAs and EHC Plans. I also recognised it had accepted it failed to meet legal timescales for EHCNAs and Plans. In taking more than 20 weeks to issue C’s EHC Plan, I found avoidable delay by the Council, which was fault.
17. The Council’s delay likely caused Mr X avoidable distress, as then shown in his complaint. There was also no disputing the Council then delayed dealing with Mr X’s complaint. In accepting its delay, the Council had taken the complaint straight to stage two but it still took five months to send Mr X a substantive response. In responding to us, the Council said it was receiving high levels of complaints about its SEN services. It also faced long term staff absences and difficulties in securing cover for such absences. Together, these two matters had led to delayed complaint responses, including for Mr X.
18. I recognised the pressures on the Council’s complaint handling given increasing complaints and staff absences. However, five months to respond to a complaint, without regular updates, fell below acceptable administrative standards. I found avoidable delay and inadequate communication in the Council’s complaint handling, which was fault. This would have added to Mr X’s existing distress and caused avoidable frustration.
19. In considering other complaints, we had found fault with the Council’s EHCNA and EHC Plan procedures and its complaint handling. And we had agreed service improvements with the Council for its complaint handling and EHCNA and Plan procedures. We had also recognised the number of people asking the Council for an EHC Plan had almost doubled within five years. And, since Mr X complained to the Council, it had remodelled its SEN services. It also had an Action Plan for improving its EHCNA and EHC Plan procedure, which included increasing staff numbers; more staff training; and updating its computer software. Councillors on the Council’s Scrutiny Panel were checking progress with the Action Plan.
20. The Council was sending us evidence of its implementation of the Action Plan and of its compliance with agreed service improvements. We were satisfied, taking account of increasing service demands, the Council’s SEN services were starting to improve. In the circumstances, I found no good reason now to recommend further service improvements for the Council’s EHCNA and Plan procedures or complaint handling.

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Action

21. Having found fault causing injustice, I considered our guidance on remedies and the specific circumstances of case. The Council had issued C’s final EHC Plan and so there was no need to recommend actions to complete C’s EHCNA. And, in responding to Mr X’s complaint, the Council had apologised for its delay in both complaint handling and completing the EHC Plan procedure. The Council’s complaint response also offered Mr X a symbolic payment. I did not find the Council’s offer, with both the issue of C’s final EHC Plan and the apology, properly addressed the injustice caused to Mr X and C. The EHCNA and Plan procedure was significantly delayed. And that delay was then compounded by delay in the complaint procedure, which led Mr X to contact his MP. Such substantive avoidable delay, without regular contact and or updates from the Council, would have caused significant avoidable distress and frustration.
22. To provide a proportionate, appropriate and reasonable remedy for the injustice, the Council agreed (within 30 working days of this statement) to make a symbolic payment of £1,200 to Mr X. The payment, as part of the overall remedy, was to recognise the injustice to Mr X and C arising from the Council’s avoidable delays. The payment comprised £1,100 for the distress and loss Mr X and C were caused by Council fault in the EHCNA and Plan procedure; and £100 for Mr X’s avoidable time and trouble caused by fault in the Council’s complaint handling.
23. The Council also agreed to send us evidence it had complied with the actions set out at paragraph 22.

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Decision

24. I found fault causing injustice. The Council agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman