Summary: Miss X complained the Council delayed completing her child’s Education, Health and Care Needs Assessment and then delayed issuing the Education, Health and Care plan. The Council was at fault for the delay. It has agreed to apologise to Miss X and pay her £1,225 to acknowledge the frustration, uncertainty and missed provision caused to her child by the delay.

The complaint

1. Miss X complained the Council failed to issue her child, Y, with an Education, Health and Care (EHC) plan despite agreeing to do this in March 2023, following her appeal to the SEND Tribunal. Miss X says the Council’s delay has caused her distress and caused her child to miss out on provision that she needs.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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). 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.
5. 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)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share the final decision with Ofsted.

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How I considered this complaint

7. I have considered:
• the information provided by Miss X.
• information provided by the Council in response to our enquiries.
• the relevant law and guidance and the Ombudsman's guidance on remedies.
8. Miss X and the Council had the opportunity to comment on a draft of this decision. I considered any comments I received before making a final decision.

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What I found

Education, Health and Care plan (EHC) plan

9. Children with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
10. 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:
• where a council receives a request for an EHC assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice;
• If the council decides not to issue an EHC plan it must notify the parents/young person of the decision and of their right to appeal within a maximum of 16 weeks from the request for an assessment.
• if the council decides to issue an EHC plan after an assessment, it should prepare a draft EHC plan and send it to schools that may be able to accept the child or young person and meet their needs. Schools should respond to the consultations within fifteen calendar days; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC plan.
11. There is a right of appeal to the SEND Tribunal about the educational provision and placement named in a child’s EHC plan. This appeal right is only engaged once the final EHC plan has been issued.
12. There is also a right to appeal to the SEND Tribunal about the decision not to issue an EHC plan. Where, following the hearing, the SEND Tribunal orders the council to issue an EHC plan or, where the council concedes the appeal before a hearing, the council must issue the final EHC plan within five weeks.

What happened

13. In late May 2022 the Council received a request from Miss X for an EHC needs assessment for her secondary school age child, Y.
14. In late July 2022, eight weeks after it received the request, the Council wrote to Miss X. The letter stated the Council would consider Miss X’s views to determine whether an EHC needs assessment was required. The letter stated the Council had six weeks from the date it received the request to decide whether to carry out an EHC needs assessment.
15. The Council carried out an EHC needs assessment and wrote to Miss X in mid-December 2022 with its decision not to issue Y with an EHC plan. Miss X appealed to the SEND Tribunal.
16. In mid-March 2022 the Council wrote to the SEND Tribunal to advise that it had received new evidence and so it now agreed to issue an EHC plan to Y. It was therefore not opposing the appeal.
17. In late April 2023 Miss X complained to the Council about the process and delays. Miss X said she was told the Council had now agreed to issue an EHC plan, the draft plan would take about five weeks to complete and they were now at week six. The Council responded and apologised for the delay. It explained the delay in carrying out the EHC needs assessment was caused by a national shortage of Educational Psychologists. It advised it had recruited new administrative and SEND officers to address capacity issues. Miss X remained unhappy as the response did not address the Council’s delay in issuing the EHC plan. She wanted to know when she would receive the draft EHC plan. She asked to go to the next stage of the complaints process.
18. In May 2023 the Tribunal issued a consent order to the Council which set out that it had agreed, in March 2023, to issue Y with an EHC plan.
19. The Council responded to Miss X at the second stage of its complaints procedure in June 2023. It apologised that the case had not been allocated to a plan writer sooner and confirmed the Council had recruited additional plan writers.
20. The Council issued a draft EHC plan and consulted with the school Y was currently attending. The school was satisfied it could meet Y’s needs and advised it had arranged an implementation meeting with Y’s parents.
21. The Council issued Y’s final EHC plan in early August 2023. The plan included additional support at the start of independent activities, weekly one to one sessions and support from a care group of identified key workers. The plan included additional funding for Y’s school from the Council to enable them to meet Y’s special educational needs.
22. In response to our enquiries the Council accepted it was at fault for the delay in issuing Y’s final EHC plan. It said there was an error as an officer believed they needed to wait for the order from the Tribunal before issuing the EHC plan. It advised it had addressed this through staff training.
23. It also set out the actions it has taken to address the continuing increase in the number of EHC needs assessments undertaken and delays in the process. It has:
• Recruited locum Educational Psychologists and engaged with agencies who could offer access to locum Educational Psychologist via their services. 
• Remodelled the SEND assessment service which took effect on 20 February 2023, creating a dedicated tribunal team and additional business support. It said the remodel is in preparation for a full service redesign which is at the advanced planning stage.
• Recruited additional plan writers.
• Moved additional business support assistants to the assessment team when it identified issues with business support capacity.

My findings

24. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
25. Miss X first requested an EHC needs assessment in May 2022. The Council wrote to Miss X, in July 2022, to advise it had six weeks from the date of the request to decide whether to carry out an assessment. This letter was sent eight weeks after the initial request was received. This was fault and is likely to have caused Miss X some confusion.
26. The Council had 16 weeks from the date of Miss X’s request for an EHC needs assessment to decide not to issue Y with an EHC plan. The Council did not reach this decision until December 2022 which was nearly 29 weeks after it received the request.
27. EHC need assessments must include advice from an Educational Psychologist. In response to Miss X’s complaint the Council explained the delay in completing the needs assessment was due to a national shortage of Educational Psychologists. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. The Council provided justifiable reasons why the Educational Psychologists advice took longer than it should have. However, this service failure was fault and meant Y’s EHC assessment took 13 weeks longer than it should have. This delay caused Miss X uncertainty and frustration and delayed her right of appeal to the Tribunal.
28. The Council has explained the efforts it is making to resolve the delays in the EHC needs assessment process. Because the Council has already taken suitable steps to address the delays and to improve the SEND department’s service, I have not made a further recommendation.
29. Miss X appealed to the SEND Tribunal about the Council’s decision not to issue Y with an EHC plan. The Council agreed not to oppose the appeal to the Tribunal in mid-March 2023. It did not issue Y’s final EHC plan until early August 2023. An officer wrongly believed they needed to wait for the Tribunal’s order before progressing the EHC plan. The Council has accepted this was fault and that it had five weeks to issue the plan from the day after it conceded the appeal. Instead, it took 19 weeks to issue the plan. This delay is fault.
30. The records show Y was receiving some support at school and had good attendance. However, this delay meant for 14 weeks, Y was without all the support they should have received.

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Agreed action

31. Within one month of the final decision the Council has agreed to:
1. Apologise to Miss X and pay her £325 to acknowledge the frustration and uncertainty caused by the Council’s failure to carry out the EHC needs assessment in line with statutory timescales. This is calculated at around £100 a month from the date the Council should have reached a decision on whether to issue a plan (during September 2022) until it made its decision in early December 2022.
2. Pay Miss X £900 to acknowledge the impact on Y of not receiving all the education provision Y should have received, as set out in their EHC plan, for around one term.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation. There was 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