• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Ms X complains about the delay in the Council issuing an Education, Health and Care Plan for Child Y. She also complains about how the Council carried out the Education, Health and Care needs assessment and the Education, Health and Care Plan issued. We find fault with the Council for the delay in issuing Child Y’s Education, Health and Care Plan. The Council has agreed to pay a financial remedy in recognition of the delay and carry out service improvements.

The complaint

1. Ms X complains

• The Council delayed issuing the Education, Health and Care Plan (EHCP) for her child.
• The Council did not include her in the EHCP process.
• The Council to did not get the relevant information to include in the EHCP.
• The Council did not meet with her to go through the draft EHCP.
• The content of the EHCP is vague and misleading.
• The EHCP for her child is not fit for purpose, and, they cannot engage with the provision.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended).
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. The courts have settled that the Ombudsman cannot investigate any matter closely linked to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP, we cannot remedy a lack of education after the date the right of appeal was engaged. This is the case if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (LGO) [2014] EWCA Civ 1407).
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).
9. 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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How I considered this complaint

10. I have considered Ms X’s complaint and information she provided. I have also considered information from the Council.
11. I have considered applicable legislation, guidance, and policy.
12. I considered comments from Ms X and the Council on a draft of my decision.

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What I found

Legislation and guidance

Education Health and Care Plan

13. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
14. The SEND Tribunal is responsible for handling appeals against local authority decisions about SEN. This includes a disagreement about what placement a council identifies as suitable for a child or young person to attend.
15. 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 EHCP’s. 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 EHCP’s “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 EHCP 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 EHCP.
16. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
    • the child’s education placement;
    • medical advice and information from health care professionals involved with the child;
    • psychological advice and information from an Educational Psychologist (EP); and
    • advice and information from any person requested by the parent or young person, where the council considers it reasonable.
17. Those consulted have a maximum of six weeks to provide the advice.

What happened

18. The Council agreed to carry out an Education, Health and Care (EHC) needs assessment for Child Y on 27th April 2023.
19. It sent out the requests to professionals for information to include in the EHCP. It requested professionals return the information within six weeks.
20. The Educational Psychology service could not provide the information in the requested deadline. It carried out its assessment of Child Y in September 2023.
21. The Council issued the draft EHCP in November 2023. Ms X felt she did not understand some of the information in the EHCP and requested a meeting to go through the details and ask questions.
22. Ms X was also unhappy about the caseworker not responding to her previous questions and the information Ms X had provided. Ms X complained to the Council about this. In her complaint she said

• The Council had ignored Ms X during the EHC needs assessment and had not considered the information about Child Y and their needs that she had provided.
• Ms X was unhappy with the draft EHCP as she felt it was vague and did not reflect Child Y's needs.
• Ms X had asked for support to understand the draft EHCP but was ignored.
• The Council had already delayed the EHCP.

23. The Council’s stage one response said

• It agreed to assess Child Y on 27th April 2023. It acknowledged there had been a delay in the process because of its Educational Psychology service.
• It offered Ms X £300 in recognition of the delay.

24. Ms X remained unhappy and asked the Council to consider her complaint at stage two.
25. The final response from the Council said

• It recognised Ms X was unhappy with her caseworker because of a lack of contact, but that it could not reassign her case.
• It had since invited Ms X to a meeting to discuss the draft EHCP but she had declined this.
• The previous financial remedy offered was the most suitable offer.

26. The Council issued an EHCP on 15th December 2023 and a further revised EHCP in February 2024.
27. Ms X remained unhappy and bought her complaint to the Ombudsman.

Analysis

The EHCP’s ability to meet need

28. Most of Ms X’s complaint centres around her disagreements with how the Council carried out the EHC needs assessment, and the resulting EHCP.
29. I acknowledge Ms X has disagreed with each of the EHCP’s issued by the Council for various reasons. These include disagreements with the educational placement identified by the Council for Child Y to attend and the provision for them. However, the disagreements about the contents of an EHCP issued by the Council carries a right of appeal to the SEND Tribunal. Ms X is currently exercising her right to appeal.
30. The central part of Ms X’s complaint is the School and the provision in the EHCP was unsuitable for Child Y and therefore the Council should have found an alternative setting or provision. As previously set out, Ms X is currently engaging her appeal rights to tribunal as she feels the School named in unsuitable.
31. As Ms X is challenging the suitability of the placement and subsequent provision, the parts of her complaint about this and the EHC needs assessment process are closely linked to her appeal rights to tribunal and therefore outside of the Ombudsman’s jurisdiction.

Delay in the EHCP process

32. The Council agreed to complete an EHC needs assessment on 27th April 2023. From this point, it had 20 weeks to issue the EHCP. If it had complied with the timescales in the regulations, it should have issued the draft EHCP by 15th August 2023. After this point, the Council would have had four weeks to issue the final EHCP.
33. The Council did not issue the draft EHCP until 15th December 2023, three months late. This was in part due to a delay because of the availability of Educational Psychologists. This was fault because of service failure.
34. In response to Ms X’s complaint, the Council accepted there had been a delay in completing the assessment and explained this was caused by a delay in the EP service.
35. I accept the difficulties faced by the Council in getting EP advice which is a national problem. However, the Council has a legal duty to meet the statutory deadline which is absolute. The EHC needs assessment process should take a maximum of 20 weeks. The Council should have issued Child Y’s final EHCP by 14th September 2023. It did not do so until 15th December 2023. This was a service failure by the Council, causing a delay of three months to Child Y’s EHCP, and Ms X’s appeal rights to tribunal.
36. The Ombudsman would expect the Council to have developed a plan to address the delay in its EHCP service because of the delay from the Educational Psychology service. This would seek to ensure the Council minimises the delay and impact on those needing support. I am therefore recommending the Council develop an action plan and provide evidence of this to the Ombudsman.

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Agreed action

37. Within four weeks the Council has agreed to

• Apologise to Ms X for the delay in issuing the EHCP.
• Pay Ms X £300 to acknowledge the distress, frustration and uncertainty caused to her and Y by the Council’s failure to issue her final EHC plan in line with statutory timescales. This remedy is calculated at roughly £100 per month for each month the Council delayed issuing the EHCP from the date the Council should have issued the final EHC plan in September 2023 until the date it issued the plan in December 2023.
• The Council should develop a long-term plan to address the delay because of Educational Psychologists. This should include taking it to the relevant scrutiny committee or panel and providing the Ombudsman with a copy once complete.

38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. I find fault with the Council for delaying the issuing of Child Y’s EHCP.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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