Summary: Ms X complained the Council failed to complete her son, Y’s, Education, Health and Care (EHC) needs assessment and produce an EHC Plan in line with statutory deadlines. Ms X also complains the Council gave Y’s nursery incorrect information about when it should begin the process of applying for an EHC needs assessment. We find the Council at fault for missing statutory deadlines. We recommend the Council apologise to Ms X and make a payment to recognise the injustice caused.

The complaint

1. Ms X complains the Council gave her incorrect advice when asking it to assess Y’s EHC needs. Ms X also complains the Council failed to complete Y’s EHC needs assessment and issue a final EHC Plan within statutory time limits. Ms X says this has caused her distress.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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.
4. 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

5. I spoke to Ms X about her complaint and considered information she provided. I also considered information received from the Council.
6. Ms 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

Relevant law and policy

7. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
8. On receiving a request for an EHC needs assessment, a council must decide whether an assessment is necessary. As part of an EHC needs assessment, a council must seek advice from the parent, head teacher of the school, and from any other professionals, including an Educational Psychologist (EP).
9. 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 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 a Council decides to assess a child’s EHC needs they must gather information from relevant professionals, who must respond within six weeks;
• The Council must then send a draft EHC Plan to the child’s parents, giving them 15 days to comment; and
• 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.

What happened

10. In the school year 2021/2022 Y was not yet of compulsory school age and was attending a nursery.
11. Y's nursery contacted the Council in December 2021. The nursery explained Y’s doctor suspected he has autism but there was no formal diagnosis. They asked, if they applied for an EHC Plan now and were unsuccessful, could they reapply and explained they had not yet applied for funding for Y as he had not reached his third birthday. The nursery explained they felt Y would need additional support when he went to pre-school and asked if, on that basis, they should wait until the summer term to apply.
12. The Council responded to explain doctors should not recommend EHC Plans are requested at such a young age as it could raise a parent’s expectations and cause unnecessary stress. The Council agreed it was usually better to wait until a child was receiving their funded entitlement and offered to talk by phone to discuss the process and options in more detail.
13. On 15 July 2022, Y’s nursery wrote to the Council asking it to discuss Y’s support needs. The Council agreed to meet with the nursery’s SEN co-ordinator on 9 August, once they returned from annual leave.
14. The Council also arranged for an Early Years SEN Advisor to observe Y and meet with Ms X on 1 September. The Council said, based on the statutory time limits, an EHC needs assessment would need to be submitted that term to be completed in time for Y to start school.
15. Y’s nursery submitted a request for an EHC needs assessment on 26 September, providing supporting documentation.
16. On 12 October, the Council wrote to Ms X to confirm it had agreed to undertake an EHC needs assessment for Y.
17. On 23 November, the deadline to gather information from the relevant professionals passed, but the Council still did not have advice from an EP.
18. The 20-week deadline to issue a final EHC Plan for Y passed on 12 February 2023 and the Council received an EP report the following day.
19. On 7 March, the Council issued a draft EHC Plan for Y.
20. Ms X complained to the Council on 29 March. Ms X said the Council had wrongly advised Y’s nursery not to apply for an EHC needs assessment until September 2022. Ms X said, if not for the advice from the Council, they would have applied sooner and the EHC Plan would be finalised. Ms X said the delays also meant Y’s school options would now be significantly reduced.
21. The Council issued a final EHC Plan for Y on 6 April, however this did not name an educational setting.
22. The Council responded to Ms X’s complaint on 17 April. The Council explained Y was first brought to the Council’s attention on 15 July 2022 and it arranged the relevant meetings and observations accordingly. The Council said it did not think it was responsible for a delay in the EHC needs assessment application. However, it did apologise for delays in completing the assessment.
23. Ms X responded to the Council on 25 April. Ms X forwarded the emails between the Council and Y’s nursery from December 2021 and said she believed the Council had told the nursery to delay applying for an EHC needs assessment. Ms X explained that, because of the delays in getting a final EHC Plan for Y, her preferred school was now full.
24. The Council responded to Ms X’s complaint on 12 June. It said it had given general information to Y’s nursery and that information was correct but a request for an EHC needs assessment could be made at any time. The Council apologised that delays with the EP service meant Y’s EHC Plan was not finalised on time but said there was a high demand for specialist education places so, even if the EHC Plan was completed on time, Y still may not have got a place at Ms X’s preferred school.
25. The Council issued a final amended EHC Plan for Y on 4 July, five months after the 20-week deadline to do so, naming Ms X’s preferred school.
26. Ms X has not appealed the EHC Plan and Y has started school.
27. The Council has told us the EP service is running at 50% capacity and there has been an increase in referrals since 2020 which is affecting the service. To address this going forward, it has said it is currently undertaking a recruitment programme to attract more EPs and other professionals who contribute to EHC needs assessments as a priority.
28. In response to a draft of this decision, Ms X said she felt the nursery’s email to the Council in December 2021 was specifically about her son and the Council should have made further enquiries to give tailored advice. Ms X said that, as a parent going through this process for the first time, she was reliant on the Council to provide accurate information and guidance which she feels it did not. Ms X also said that, knowing there were delays with the EP service, the Council ought to have advised her to apply sooner.

Analysis

29. Ms X says the Council incorrectly advised Y’s nursery not to apply for an EHC needs assessment until September 2022. The Council has said this is not correct and it only ever gave general advice about the process of applying for an EHC needs assessment. Having read the emails between the Council and Y's nursery, I do not find the Council at fault. I say this because, while it said it is not usual to apply for an EHC needs assessment for particularly young children, it does not appear to discuss Y specifically. The Council also did not say definitively that the nursery should not apply for an EHC needs assessment.
30. I appreciate Ms X feels, given the known delays with the EP service, the Council ought to have advised her to submit the application sooner. However, I cannot find the Council at fault for working on the assumption it would meet statutory timescales.
31. The Council began the process of assessing Y’s EHC needs on 26 September 2022. If the Council completed this in line with statutory time limits, Y’s EHC Plan would have been finalised by 12 February 2023. However, the Council did not finalise Y’s EHC Plan until 4 July 2023. This is fault.
32. The EHC Plan was finalised before Y was due to start school, so he did not miss out on any provision he was entitled to as a result of the delays. However, the delays caused uncertainty and distress to Ms X, which is injustice.
33. The Council has confirmed the reason for the delay is a shortage of available EPs. However, the Council has explained it is already in the process of addressing this with a priority recruitment programme and, I find this is suitable to address any ongoing injustice and prevent a recurrence of these issues.

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Agreed action

34. To address the injustice identified above, I recommend the Council carry out the following actions within one month:
• Provide Ms X with a written apology for the injustice identified above
• Pay Ms X £500 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s failure to issue Y’s final EHC Plan in line with the statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC Plan in February 2023, up to the date of the final EHC Plan in July 2023.
35. The Council has agreed to these recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

36. I find the Council at fault for failing to complete Y’s EHC needs assessment in line with statutory time limits. The Council accepted my recommendations, and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman