Summary: Miss X complained about the Council’s handling of her child’s Education, Health and Care needs assessment and Plan. We found avoidable delay by the Council in its handling of Miss X’s case which caused her avoidable distress and frustration. To put matters rights, the Council agreed to make a symbolic payment of £700 to Miss X. We did not find the Council’s delay meant Miss X’s child lost the opportunity to gain a place at her preferred specialist school.

The complaint

1. Miss X said the Council delayed both completing the Education, Health and Care (EHC) needs assessment for her child, C, and then issuing C’s EHC Plan. Miss X said the delays meant C lost the opportunity of securing a suitable placement at the start of the school year.
2. Miss X said moving schools mid-year affected C’s anxiety and her mental health. Miss X also said C would not attend the new school.
3. Miss X wanted the Council to provide better support for parents of neuro diverse children and take account of parents’ views.

Back to top

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. 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)
6. 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)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
8. 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)

Back to top

How I considered this complaint

9. I have:

• considered Miss X’s written complaint and supporting papers;
• talked to Miss X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared Council information about the complaint with Miss X; and
• shared a draft of this statement with Miss X and the Council and considered any comments received before making a final decision.

10. Under our information sharing agreement, we have shared this final decision statement with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Background

11. A child or young person with special educational needs (SEN) may have an 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. 
12. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (the Code) sets out the process for carrying out EHC needs assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs and Disability (SEND) 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.
• As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• 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. 

Those consulted have a maximum of six weeks to provide the advice. 

• 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond within 15 calendar days.

13. The council must arrange a review of the EHC Plan at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (See SEND Regulation 20(10) and the Code paragraph 9.176) 
14. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) EHC Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (See SEND Regulation 22(2) and the Code paragraph 9.194.) Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
15. People have appeal rights to the Tribunal against many council SEN decisions. For example, the description of a child’s SEN in their EHC Plan or the school named in the Plan. There are also appeal rights against a council’s decision to change or not change these parts of the Plan.
16. Children must be in fulltime education once they reach compulsory school age. This is on 31 December, 31 March or 31 August following their fifth birthday.

Council policy and practice

17. The Council has a primary school admissions policy. The policy references the academic year starting 1 September and ending the following 31 August. Children are normally expected to start fulltime education, in the Reception Year at primary school, in the September of the school year of their fifth birthday. So, children born in February 2025 would normally start school in September 2029. However, parents may ask to defer the start date to later in the relevant school year or until their child reaches compulsory school age.
18. The Council said, facing high demand but limited places, it had introduced monthly meetings of a Panel (the Panel) to consider admissions to specialist schools.
19. It considered requests for specialist schools during the EHC Plan process. And when people stated a preference for a specialist school, the Panel consider if a specialist school is appropriate. Then, if appropriate, its SEN officers contact the specialist school, sharing information about the child’s needs. The school then confirms if it can meet the child’s needs and offer a place or gives reasons for not doing so. The Panel then consider the school’s response and decide whether to agree with it. If the school offers a place, the Panel must give reasons if they do not agree with the offer. If the school does not offer a place, further discussion usually takes place with the school if the Panel do not agree.

Summary of what happened

20. The Council received a request to carry out an EHC needs assessment for C while C was at preschool. Six weeks later, the Council told Miss X it would assess C. The Council also said a national shortage of EPs was affecting its SEN services and would delay C’s assessment.
21. Nearly three months later, the Council allocated an EP to C’s case. After about six weeks, the Council received the EP’s report.
22. Meanwhile, Miss X contacted the Council saying C had been offered a place at a mainstream primary school. Miss X said she did not want to accept the offer as a specialist school would best suit C’s educational needs. Miss X gave the Council the name of her preferred specialist school (School S). Miss X said C would stay at preschool if he could not start at School S next September. In its response the Council said having an EHC Plan did not guarantee a child a specialist school place. However, it had to consult Miss X’s preferred school in processing any EHC Plan for C.
23. In the two months after receiving the EP’s report, the Council prepared a Needs Assessment Report for C. The Council shared the report with Miss X and met with her to discuss it. The Council also further considered C’s needs. It then wrote to Miss X about issuing an EHC Plan for C. The Council also sent Miss X a draft EHC Plan for comment and asking her to name her preferred school for C.
24. Miss X agreed the draft EHC Plan and confirmed her preference for C to attend School S. The Council consulted schools, including School S, about a place for C. No school offered C a place. The Council again considered matters, recognising Miss X had decided to defer C’s move to primary school until C reached compulsory school age.
25. About two months after issuing the draft Plan, the Council sent Miss X a copy of C’s final EHC Plan. The Plan did not name a school but said C would attend an early years setting as his primary school place had been deferred to the following year. The Council gave Miss X information about her appeal rights to the Tribunal. The Council also said it would review the EHC Plan after four months and again contact School S about a place for C. It was nearly 10 months since the request for C’s EHC needs assessment.
26. Rather than four months, the review of C’s EHC Plan started about six weeks later. Miss X again said she wanted C to attend School S. The Council continued to contact local schools, including School S, seeking a place for C. No school offered C a place. The Council updated Miss X by telephone.
27. Miss X complained to the Council saying the 10 months it took to issue C’s EHC Plan meant he had no primary school place. And, despite the deferral, C remained without a place. Miss X also complained about the Council’s poor communication during the EHC needs assessment and Plan process.
28. The Council replied about four weeks later and apologising for its delay. During those four weeks the Council issued an amended draft EHC Plan and again formally invited Miss X to express her preference for a school place. (Miss X did not change her view that School S would best meet C’s needs.) The Council also continued to contact and formally consult schools. The Council telephoned and wrote to Miss X updating her about school responses, none of which offered C a place. The Council also wrote to Miss X saying School S could not offer C a place and it accepted School S’s response. The Council told Miss X it would talk to her about a placement for C once all consulted schools replied.
29. About a week after the Council had written to Miss X, a mainstream primary school offered C a place. The Council noted that Miss X would accept the place and about a week later issued an amended EHC Plan for C naming the school. The Council again told Miss X about her rights to appeal to the Tribunal.
30. C started primary school and reached compulsory school age. Miss X asked that C change school and attend School S. And, near the end of the school year, an early annual review meeting took place. The notes of the meeting showed C’s school considered C would progress within the provision it offered but that Miss X was not happy with the placement and wanted School S.
31. The Panel considered C’s case about two months after the early annual review meeting. (The Panel did not agree a placement for C at School S.)
32. The Council wrote to Miss X explaining places in specialist schools were extremely limited. The Council said it had taken C’s case to the Panel to consider C’s placement in School S and would formally tell her of the decision. The Council then wrote to Miss X saying it would not amend C’s EHC Plan to show School S. The Council’s letter gave Miss X information about her rights to appeal to the Tribunal.

The Council’s comments to the Ombudsman

33. School S had limited places for C’s primary school Reception Year. Those places had been allocated and confirmed in the July preceding the September start of the school year during which C became of compulsory school age. It formally consulted School S about a place soon after Miss X responded to C’s draft EHC Plan, which was after July that year. The issue of C’s first EHC Plan was delayed by the national shortage of EPs. It also faced a high volume of requests for EHC needs assessments. Its SEN officers were therefore handling high caseloads. This had led to the added time taken to issue C’s final EHC Plan after receiving the EP report. The national EP shortage and high caseloads affected all EHC needs assessments and Plans, including C’s. So, the delay in C’s case was not the reason C did not get a place at School S.
34. The Council said not naming a primary school in C’s first EHC Plan was not linked to its delay. Rather, Miss X had said she would not accept the mainstream primary school offered to C during the EHC needs assessment but wanted a specialist placement. Miss X confirmed this at the meeting to discuss C’s Needs Assessment Report and said C would remain at preschool if a place at School S was not available. The Council said Miss X also then knew it had decided not to name School S in any final EHC Plan it issued for C.
35. On communication, the Council said its officers had given Miss X their contact details and regularly updated her throughout C’s needs assessment process. It also gave Miss X information about, and later reminded her of, SENDIASS (the Special Educational Needs and Disabilities Information Advice and Support Service). SENDIASS provides people with free, confidential, and impartial SEND help. Miss X had engaged with the EP, and it had included her views in C’s final EHC Plan. Miss X also had opportunities to comment when it met her to discuss C’s Needs Assessment Report and in responding to C’s draft EHC Plan. It had also offered to meet Miss X to discuss the draft Plan. Its letter sending C’s final EHC Plan also invited Miss X to contact or meet with it if she had any questions or concerns about the Plan. Its three letters telling Miss X about appeal rights to the Tribunal also included information about independent mediation services and that she could contact its officers. Miss X also took the opportunities to meet with officers during the two annual reviews of C’s EHC Plan.

Consideration

36. There was no dispute the Council failed to meet the legal timescale for issuing C’s final EHC Plan. Rather than 20 weeks, it took around 40 weeks for the Council to issue C’s final EHC Plan after receiving the request for a needs assessment. The failure arose from delays in securing an EP report and in the Council’s SEN officers then considering all the professional reports and issuing C’s draft and final EHC Plans.
37. We are aware of the national EP shortage. If we are satisfied a council has put measures in place to mitigate the impact of that shortage on its services, we consider delay attributable to the lack of EP advice as service failure. (See paragraphs 4 and 5 of this statement.) In considering other complaints, we found fault with the Council’s EHC needs assessment and Plan procedures. And we agreed service improvements with the Council for its SEN services. For example, improvements to deal with both the increasing demand for EHC services and the national EP shortage; and communicating with people where there are EHC delays. I was satisfied the Council was working to put in place previously agreed service improvements. I therefore saw no need now to recommend further improvements. As the Council was working to address EP delays, I found the delay in allocating an EP to C’s case was a service failure.
38. However, after receiving the EP’s report, it took the Council a further four months to issue C’s final EHC Plan. I recognised the caseload pressures on the Council’s SEN officers. However, I found there was further avoidable delay, which was fault, between receipt of the EP report and the Council issuing C’s final EHC Plan.
39. The Council’s delay in completing the EHC needs assessment and issuing C’s final EHC Plan would likely have caused Miss X avoidable distress and frustration. I therefore found the Council’s fault caused injustice.
40. Miss X said the delay in issuing C’s first EHC Plan meant he had no primary school place for September of his primary school Reception Year. Miss X said the delay also meant C lost the opportunity to attend a school suited to his needs.
41. The evidence showed Miss X was offered a primary school place for C to start in September of his Reception Year. Miss X declined that offer. I recognised Miss X did not want to accept the offered place, which was for a mainstream school. However, a place was made available to C. And, having considered the Council’s procedures for considering placements in specialists schools, I found the delay in issuing the final EHC Plan did not mean C missed an opportunity for a specialist place. The delay in C’s needs assessment and Plan was not an isolated event. The Council was working through, although with delays, requests for EHC assessments, Plans and specialist school places, as received. So, without delay on any relevant cases, including C’s, the decision for C would have been the same but reached sooner.
42. The Council’s avoidable delays would have caused a resulting delay to Miss X’s appeal rights to the Tribunal. However, before complaining to the Ombudsman, Miss X had had three opportunities to appeal about the school named in C’s EHC Plan. As the Council would not name School S in C’s EHC Plan, it was the Tribunal, on appeal by Miss X, that had power to direct that School S be named in the Plan. I saw nothing to suggest it was unreasonable to expect Miss X to use her legal rights to appeal to the Tribunal.

43. Miss X said the Council’s communication with her had been poor. I carefully considered the papers sent to me by Miss X and the Council about C’s EHC needs assessment and Plan. I recognised Miss X found the Council’s communication unsatisfactory. However, I did not find the Council’s communication fell below acceptable administrative standards. I therefore found no fault in the Council’s communication with Miss X.

Back to top

Agreed action

44. I found fault causing injustice. And, in responding to the Ombudsman, the Council, in recognition of what had happened, offered Miss X £700. I found the Council’s offer represented a proportionate, appropriate and reasonable way to put right the injustice I identified to Miss X arising from its fault. So, the Council agreed, within 20 working days of this statement, to make Miss X a symbolic payment of £700 in recognition of the avoidable injustice caused by its fault.
45. The Council also agreed to provide us with evidence it had complied with the action set out in paragraph 44.

Back to top

Final decision

46. I completed my investigation, finding fault causing injustice, on the Council agreeing the actions at paragraphs 44 and 45.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman