Summary: The complainant (Mrs X) said the Council failed to comply with the statutory timescales for an Education Health and Care (EHC) needs assessment for her daughter (Y) and for issuing her EHC plan. We found fault in the Council’s delays. This fault caused Y and Mrs X injustice. The Council agreed to apologise, make payments to recognise the loss of provision and distress and carry out some service improvements.

The complaint

1. Mrs X complained about the Council’s delays in Y’s EHC needs assessment and in issuing her final EHC plan. Mrs X said these delays meant Y had been out of school since February 2023. The Council’s failings, she said, had a negative impact on Y’s and her own mental health and the family finances.

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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. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. 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)
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(i), as amended)
7. 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 this decision with Ofsted.

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What I have and have not investigated

8. I have not investigated the content of Y’s EHC plan issued in June 2023. Mrs X has the right to challenge the Council’s position on the content of Sections B, F and I through an appeal to the SEND Tribunal. Besides Mrs X did not raise any concerns about the content of other sections of the EHC plan in her original complaint, which had been brought before the Council issued Y’s EHC plan.
9. I have not investigated whether the Council had a duty to provide education to Y since she stopped attending School 2. Although Mrs X mentioned Y’s lack of education in her complaint to the Council, this was raised to show the impact of the Council’s delays on Y rather than as a separate issue. The Council did not address this issue in its complaint responses. I do not consider we would be in a position to investigate the Council’s compliance with its duties for Y under the Education Act 1996 section 19 before the Council had an opportunity to investigate and reply.

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How I considered this complaint

10. I spoke with Mrs X and considered the information she provided.
11. I considered the information the Council provided.
12. I reviewed the Ombudsman’s ‘Guidance on remedies’.
13. Mrs 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 framework

14. 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 needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.
15. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
16. 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.

What happened

Background

17. Y is 15 and has an Autistic Spectrum Disorder (ASD) diagnosis. She also has sensory processing difficulties.
18. From September 2020 Y attended a mainstream secondary school (School 1). During her time at School 1 Y’s mental health gradually declined. Since 2021 she has been receiving help from Children and Adolescent Mental Health Service (CAMHS) for depressions and anxiety.
19. Mrs X asked the Council to carry out an EHC needs assessment for Y at the beginning of February 2022.
20. In March Y moved to a different secondary school (School 2). School 2 was very supportive and worked closely with CAMHS. It offered Y individual support and a part-time timetable. At this stage Mrs X withdrew her request for Y’s EHC needs assessment as she hoped all the interventions would be enough for Y to re-engage with education.

EHC process

21. At the beginning of September Mrs X sent to the Council a request for an EHC needs assessment for Y. The Council agreed to carry out this assessment in the second week of November.
22. Y continued struggling to engage with learning at School 2 and stopped attending in February 2023. Her mental health declined even further.
23. On several occasions Mrs X contacted the Council about the progress of Y’s EHC needs assessment. At the end of February she told the Council Y was out of school. The Council did not respond to this correspondence.
24. In March an independent Educational Psychologist (EP) commissioned by the Council carried out Y’s assessment. It had to take place at home as Y was not attending school.
25. In the third week of April Mrs X complained to the Council about delays in Y’s EHC needs assessment. She mentioned Y had received no education since she had stopped attending School 2. Mrs X also complained about the absence of a special education needs (SEN) case officer for Y with whom Mrs X could communicate directly.
26. The Council responded at the beginning of May. Mrs X was not happy with the Council’s response and asked the Council to consider her complaint at stage two of the complaint process.
27. At the beginning of June the Council issued Y’s draft EHC plan. When providing her comments to the draft EHC plan Mrs X asked the Council to correct errors, include updates and amend the document with some information from professional reports she had provided.
28. In its final response to Mrs X’s complaint the Council:
• Apologised by saying “I am sorry that on this occasion you feel the service we provided did not meet your expectations”;
• While confirming that Mrs X’s complaint was upheld stated it could not confirm the date when Y’s EHC plan would be issued due to the number of EHC needs assessments and a backlog of cases;
• Stated that issuing a draft EHC plan should be an appropriate remedy for the Council’s failings;
• Mentioned it was implementing changes to its processes and recruiting extra EPs as well as EHC plan writers to address the backlog and reduce delays.
29. The Council issued Y’s final EHC plan at the end of June. Mrs X raised concerns the final EHC plan was an exact copy of the draft and was full of errors. She said it contained outdated information and did not include information from the reports Mrs X sent.
30. Y’s EHC plan included provision for:
• Individual support across key parts of the school day;
• Daily individualised or small group learning support;
• Weekly individual sessions of pastoral support;
• A bespoke communication programme;
• A programme of direct occupational therapy (OT) sessions.
31. In her comments to my draft decision Mrs X said the Council had withdrawn Y’s final EHC plan following a mediation which took place at the beginning of August 2023. A few days later the Council issued another draft EHC plan. Mrs X said the Council still had not sent her Y’s final EHC plan.

Analysis

Fault

32. The Council should have issued a final EHC plan for Y at the end of January 2023. In fact it happened at the end of June. The delay of five months in issuing Y’s EHC plan is fault.
33. I accept a part of the Council’s delay was caused by the delay in getting EP statutory advice. We are aware there is a nationwide shortage of EPs and, provided we are satisfied that councils put in place measures to mitigate the impact of this shortage on their services, we would see the delays caused by the unavailability of EP statutory advice as service failure rather than maladministration.
34. After receiving EP advice at the end of March 2023, it took the Council over two months to issue a draft EHC plan, which is unreasonable in view of the delays that had already happened.
35. I cannot accept Mrs X’s claim that the Council has withdrawn Y’s EHC plan issued in June 2023 by issuing a draft EHC plan in August. It seems that following mediation the Council agreed to review Y’s EHC plan in an attempt to avoid an appeal. Until the Council issues an amended final EHC plan for Y, the one issued in June is in place. If Mrs X is unhappy about the process following the mediation meeting, she will need to complain to the Council first.
36. The Council’s fault caused injustice to Y and Mrs X.

Injustice to Y

37. The Council’s delays in issuing an EHC plan meant a delay in setting up support Y needed to overcome her difficulties in accessing education. This was particularly important as in February 2023 she stopped attending School 2. We cannot say whether having an EHC plan would have helped in her engagement with learning at School 2. In any case, however, the Council would have had a duty to arrange special educational provision (SEP) for Y from the end of January 2023.
38. When examining the impact of the Council’s delays on Y I considered her age and the stage of her education.

Injustice to Mrs X

39. The Council’s failings to comply with the timescales for an EHC needs assessment and the issuing of an EHC plan caused Mrs X frustration. She spent much time trying to contact the Council and was distressed at the lack of communication. From February until August 2023 she did not have an assigned case officer with whom she could discuss the progress of Y’s EHC plan process.
40. We cannot say whether, if not for the Council’s failings, Y would have been at school and Mrs X would not have had to supervise her at home. Thus it is not clear whether the Council’s failings had any substantial impact on Mrs X’s work and finances.

Remedies

41. I do not consider the Council’s apology, made in the stage two response to Mrs X’s complaint, acceptable. When apologising the Council referred to Mrs X’s feelings of dissatisfaction rather than took responsibility for its failings. In our recently reviewed ‘Guidance on remedies’ we explain what makes an apology effective and would expect councils to follow the principles set out in this document.
42. If the Council had issued Y’s EHC plan in line with the statutory timescales, the Council would have had a duty to arrange SEP for Y from the end of January 2023. Even allowing a few weeks for organising the provision included in Section F of Y’s plan she would have been likely to have them in place from the beginning of March 2023. I have therefore recommended a symbolic payment for missed provision for a term and a half.

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Agreed action

43. To remedy the injustice caused by the faults identified, we recommend the Council complete the following within four weeks of my final decision:
• send a written apology to Mrs X. The apology should follow the principles for effective apologies set up in our revised ‘Guidance on remedies’;
• pay Mrs X £1,500 for the injustice caused to Y by missed provision for a term and a half. This should be used for Y’s educational benefit;
• pay Mrs X £300 for her distress.

The Council will provide us with evidence the above has happened.

44. We also recommend within three months of my final decision the Council:
• prepare a plan of action for dealing with a shortage of EPs and tackling a backlog of EHC needs assessments and EHC plan issuing.
• ensure all staff dealing with complaints review our ‘Guidance on remedies’ paragraph 2.2 on making effective apologies.

The Council will provide us with evidence of completing the above actions.

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Final decision

45. I uphold this complaint. I found fault in the Council’s failure to comply with the statutory timescales for an EHC needs assessment and for issuing Y’s EHC plan. This caused injustice to Y and Mrs X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman