Summary: Mrs X complained the Council delayed issuing an Education, Health and Care Plan for her daughter. Mrs X says the Council’s actions caused avoidable distress and anxiety to her daughter and to the family. We found fault by the Council. The Council has agreed to provide an apology and financial remedy to Mrs X, and to provide us with evidence of the steps it has taken to improve its special educational needs and disability assessment service.

The complaint

1. Mrs X complained the Council delayed issuing an Education, Health and Care Plan for her daughter. Mrs X says the Council’s actions caused avoidable distress and anxiety to her daughter and to the family and meant her daughter did not receive an appropriate transition into her post-16 placement at college.
2. Mrs X also complained that after the Council issued the Education, Health and Care Plan, it did not provide the provision specified for her daughter.
3. Mrs X would like the Council to make changes to its processes so the same issues do not happen again. Mrs X would also like the Council to apologise and provide a financial remedy.

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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. 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. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
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 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 have and have not investigated

8. I have investigated the complaint referred to in paragraph one, for the period September 2022, (when Mrs X asked the Council to carry out an Education, Health and Care needs assessment), to June 2023, (when the Council issued the final Education, Health and Care Plan). I have not investigated the complaint referred to in paragraph two because this complaint was made to the Council after Mrs X brought her initial complaint to us.

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How I considered this complaint

9. I discussed the complaint with Mrs X and considered the information she provided.
10. I made enquiries to the Council and considered the information it provided.
11. Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Law and guidance

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
13. 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 following: 
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• 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 the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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).  
14. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 
• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information, and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 
15. Those consulted have a maximum of six weeks to provide the advice. 
16. Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate.  

Appeal rights

17. There is a right of appeal to the Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.
18. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
19. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Alternative provision

20. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
21. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
22. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
23. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

24. This chronology includes key events in this case and does not cover everything that happened.
25. Mrs X’s daughter, Y, who has a diagnosis of autism and anxiety, was on roll at a mainstream school. Mrs X says in 2022, Y struggled to attend school because of her anxiety.
26. Mrs X asked the Council to carry out an EHC needs assessment for Y on 7 September 2022.
27. In November 2022, the Council told Mrs X it had a backlog of cases to consider. It said Y’s case was waiting to be heard at panel and hopefully the Council would be able to provide a decision soon.
28. In December 2022, the Council told Mrs X it had agreed to carry out an EHC needs assessment. Following this, and as part of its decision-making process, the Council sent requests for information to several professionals, including an Educational Psychologist (EP).
29. About the same time, Mrs X told the Council a draft EHC Plan would be beneficial as Y was due to transition to post-16 education in September 2023.
30. Mrs X says the school informally excluded Y in January 2023 after an incident which took place at school. Mrs X told the Council Y’s anxiety was worsening and she was concerned that the EHC Plan needed to include details of Y’s transition to post-16 education. The Council told Mrs X it had passed her concerns on to the SEND service.
31. Later that month, the Council told Mrs X the EP’s advice was late and was not due until the end of February 2023. The Council said it could not move forward with the assessment until it had received the EP’s report.
32. The Council received the EP’s report in early March 2023.
33. Mrs X contacted the Council and asked for an option for Y to retake the current academic year as she had been unable to access face-to-face education since January 2023. Mrs X asked the Council to consider this option as part of a draft EHC Plan.

Mrs X’s complaint

34. Mrs X complained to the Council in April 2023. She said she had requested an EHC needs assessment in September 2022, but the Council had not yet told her if it would issue an EHC Plan or not. Mrs X asked the Council to issue an EHC Plan as soon as possible.
35. The Council issued a draft EHC Plan in May 2023. Shortly after, it responded to Mrs X’s complaint. The Council said it had a very high number of EHC needs assessment requests which had led to unavoidable delays. It acknowledged this was not acceptable and said it was taking action to address the matter, including recruiting additional SEND officers.
36. The Council said there is currently a national shortage of EPs and a high demand for their services. The Council said this was causing delays in their responses to requests for advice for EHC Plans. The Council upheld Mrs X’s complaint and apologised for any upset or distress caused by the delay.
37. Mrs X requested some amendments to the draft EHC Plan and escalated her complaint to stage two as she was unhappy with the Council’s response.

What happened next

38. The Council issued the final EHC Plan on 20 June 2023. It said Y was currently attending a mainstream school but that a suitable post-16 placement was to be identified from September 2023.
39. The Council issued its final complaint response on 29 June 2023. It maintained the EP advice was delayed and said this played a part in the delayed issuance of the EHC Plan. The Council said it wrote the draft EHC Plan in May after it had invested in additional resources to address the backlog of delayed needs assessments. The Council re-iterated its apology for the delay in issuing the final EHC Plan and said the outcomes contained in the plan were written to the end of July 2025 in recognition of Y’s post-16 transfer in September 2023. The Council said it would amend the final EHC Plan to name a post-16 placement.
40. Mrs X remained dissatisfied with the Council's response and brought her complaint to us.
41. In September 2023, the Council issued an amended final ECH Plan which named Y’s post-16 placement. Mrs X has appealed to the Tribunal.

Analysis

42. The amount of information provided as part of this investigation was considerable. In this decision statement, I have not made reference to every element of that information, but I have not ignored its significance.
43. It is clear from the evidence provided that the Council incurred delays throughout the EHC Plan process. The Council did not provide Mrs X with a decision within six weeks about whether to carry out an EHC needs assessment. In addition, it did not provide a decision within 16 weeks about whether to issue or refuse an EHC Plan, and it did not provide a final EHC Plan within 20 weeks of the request for an assessment. The Council issued the final EHC Plan 21 weeks after the statutory 20-week timeframe had expired. These delays incurred by the Council are fault.
44. I acknowledge the reasons stated by the Council for the delays as set out in its stage one complaint to Mrs X. In its response to my enquiries the Council apologised unreservedly for the delays in its completion of EHC needs assessments and said it is taking purposeful action to reduce the delays, as well as employing additional EPs. The Council said it has remodelled the SEND assessment service in preparation for a full-service redesign. The Council said it employed additional plan writers in the assessment team to address the backlog, and temporary staff are in place until the full restructure is completed, and permanent staff are recruited.
45. The Council says it is monitoring the impact of these changes and has moved resources to areas requiring additional support. It says it has also employed additional SEND officers and is providing on-going training to all officers.
46. It is positive the Council has taken the above steps to address the delays incurred. It is also positive the Council has acknowledged the delays and apologised to Mrs X. However, the remedy offered by the Council to date does not fully address the injustice to Y and Mrs X.
47. Mrs X says the injustice to Y from the delay in issuing the EHC Plan was that Y was late to enrol at her post-16 placement. Mrs X also says the lateness of the plan meant the content was effectively out of date when the Council issued it. Mrs X says the delays also had a significant negative impact on Y’s mental health, which deteriorated considerably, causing avoidable harm to Y’s physical and mental health. Mrs X also says the delays caused considerable avoidable distress to her and the rest of the family. The following section of this decision statement sets out my recommendations for a remedy to address the injustice identified.
48. Mrs X says she considers the Council did not ensure suitable educational provision was made to Y while she was waiting for the EHC Plan and was not attending school.
49. As previously stated, councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have.
50. The Council has provided evidence of the educational provision provided to Y for the period September 2022 to June 2023. It says the school was responsible for Y’s educational provision during this period but acknowledges its duty under section 19 of the Education Act. The Council says a bespoke Out of School Tuition package was put in place, and that this was regularly reviewed, with reasonable adjustments made where required.
51. The explanation provided by the Council, together with the supporting evidence, indicates the Council objectively considered whether the education arranged by the school was suitable for Y during this period; it considered the provision made was achievable and would enable Y to reduce and cope with her anxiety and maintain her mental health. As a result, I have found the Council is not at fault regarding this matter.

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Agreed action

52. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide a further apology to Mrs X. I acknowledge the Council has already apologised to Mrs X for the delay in issuing the final EHC Plan; however, the Council incurred delays throughout the process and a further apology to Mrs X is therefore appropriate.
2. Provide an apology to Y for the fault identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
3. Make a payment of £525 to Mrs X to recognise the distress, uncertainty and frustration caused by the delay in issuing the final Education, Health and Care Plan. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final Education, Health and Care Plan in January 2023 until the date it issued the final plan in June 2023;
4. Make a further payment of £750 to Y in recognition of the distress and harm to health caused by the delay, and
5. Provide the Ombudsman with evidence of the steps taken as part of the Council’s remodeling of its special educational needs and disability service, and its employment of additional Educational Psychologists.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have found fault by the Council and the Council has agreed to take the above action to remedy the complaint. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman