Summary: The Council’s delay considering Mrs X’s request for an Education Health and Care needs assessment for her child was fault. The Council has agreed to apologise, make a payment to Mrs X and act to improve its services.

The complaint

1. Mrs X complained that the Council took too long to consider her request for an Education Health and Care needs assessment for her child. After agreeing to carry out the assessment in May 2023, the Council further delayed completing it.
2. As a result, Mrs X says her child remained in an education setting for over a year which could not meet their special education needs and she has experienced avoidable distress and financial loss.

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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. 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 considered the complaint and the information Mrs X and the Council provided along with the relevant law and guidance.
6. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
7. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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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What I found

Education Health and Care plans

9. A child 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 needs assessment it must decide within six weeks whether to agree to the assessment;
• a council should decide if it will issue an EHC plan within 16 weeks of the request for an assessment; and
• the whole process from the point an assessment is requested until a final EHC plan is issued must take no more than 20 weeks.

11. 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. An appeal right only arises 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.

What happened

12. Mrs X asked the Council for an assessment of her child Z’s special education needs in July 2022.
13. Mrs X did not hear back from the Council so she followed up in September. She says the Council told her that her request was logged and got an email a few days later saying the Council would issue a decision on whether to do an assessment within six weeks.
14. When Mrs X complained to the Council in January 2023, she said since the six week deadline passed, she had only been able to contact someone at the Council once.
15. At the end of January, the Council responded to Mrs X’s complaint at stage one of its complaint process. It said:
• It had a backlog of cases which meant it was not meeting the statutory timescales
• It had set up an Assessment Recovery Project with extra staff to address the backlog
• It estimated work would start on Z’s case in the next four weeks
• It apologised for the delay
16. Mrs X asked the Council to escalate her complaint to stage two in April, when she still had no decision on whether the Council would assess Z.
17. In early May, the Council decided to assess Z’s needs.
18. The Council responded to her complaint at stage two in May. It said:
• It upheld her complaint and apologised
• “it is regrettable that, following the stage one response, [Z’s] case was not considered within the agreed four week time scale and you did not receive any communication from the service by way of an update.”
19. Mrs X says the Council issued a draft EHC plan in September 2023.

My findings

20. As the Council accepted in its response to Mrs X’s complaint, its delay deciding whether to assess Z was fault.
21. Had the Council met the statutory timescales, the timeline for Z’s case should have been:
• July 2022: Mrs X sought an assessment
• August 2022: the Council decides to do an assessment
• November 2022: the Council tells Mrs X it is going to issue an EHC plan
• December 2022: the Council issues a final EHC plan, giving Mrs X a right of appeal to the tribunal.
22. The actual timeline was:
• July 2022: Mrs X sought an assessment
• May 2023: the Council decided to do an assessment
• September 2023: the Council issued a draft EHC plan
23. The whole process should take no more than 20 weeks. The Council took 10 months too long. This was fault.
24. The Council should have told Mrs X by August 2022 if it was going to assess Z’s needs. It did not do so until May 2023. This delay means Mrs X experienced avoidable uncertainty about whether the Council would do the assessment. This is an injustice to Mrs X.
25. The Council should have told Mrs X by November 2022 if it was going to issue Z with an EHC plan. It did not do so until September 2023. This caused avoidable distress for Mrs X and Z in trying to support Z’s needs without the provision detailed in an EHC plan. It delayed Mrs X getting a final EHC plan which she can appeal. This is an injustice to Mrs X and Z.
26. Mrs X provided evidence that she paid for special provision for Z while the EHC was delayed. Since December 2022, this is over £4,000. The draft EHC plan includes provision and support similar to that paid for by Mrs X. It is likely, therefore, that she would not have had to pay for this provision were it not for the Council’s delay in the EHC process. This financial loss is an injustice to Mrs X.
27. Z should have had a final EHC plan by December 2022. At the time of writing, they do not. The injustice to Mrs X and Z is therefore ongoing.
28. Mrs X experienced further avoidable distress and frustration because of the Council’s poor communication throughout the process, which was further fault.

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Agreed action

29. To remedy the injustice to Mrs X and Z from the faults I have identified the Council has agreed to:
• Apologise to Mrs X in line with our guidance on Making an effective apology
• Pay Mrs X £1,500, being £150 a month for the 10 months between December 2022 and September 2023 during which Mrs X and Z experienced avoidable distress and uncertainty.
• Pay Mrs X a further £150 a month until the Council issues a final EHC plan giving Mrs X a right to appeal to the tribunal
• On provision of suitable receipts or invoices, refund Mrs X for the provision she has secured for Z since December 2022, except for the one hour a week for a tutor which falls under an existing flexi-schooling arrangement.
• Ensure the Council considers the impact of the delay on Z’s education and needs and make any extra provision necessary to address this.
30. The Council should take this action within four weeks of my final decision.
31. The Council should also take the following action to improve its services:
• update the Ombudsman on its progress against its plan to address its backlog of requests for Education Health and Care needs assessments; and
• ensure the Council keeps people awaiting EHC decisions updated about the status of their case.
32. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.

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Final decision

33. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman