Summary: Mrs X complained the Council delayed completing her child, Child Y’s Education, Health and Care (EHC) needs assessment and deciding to issue Child Y with an EHC Plan. The Council was at fault. Its failure to meet its statutory timescales was mainly due to a delay in obtaining Educational Psychologist advice. The Council will apologise, make a payment to Mrs X for the frustration and uncertainty the delays caused and put a service improvement in place for decision letters. The Council has already put service improvements in place for delays and communication.

The complaint

1. Mrs X complained the Council delayed issuing her child, Child Y’s, Education, Health and Care (EHC) Plan within the statutory timescale, part of this time was when Child Y was on a reduced timetable at school. Mrs X also complained the Council’s communication with her was poor.
2. As a result, Mrs X said she had been put to unnecessary time and trouble pursuing the Council, caused distress and a financial burden. Mrs X said she wanted assessments completed within the statutory timescales, families to be kept updated and Child Y’s EHC Plan issued, so they received the correct support.

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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. 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 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.
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 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.

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How I considered this complaint

8. I considered:
• the information Mrs X provided and spoke to her about the complaint;
• the information the Council provided;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Education, Health and Care (EHC) Plan

10. 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.

Timescales and process for EHC assessment

11. 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.
• a council should decide if it will issue an EHC Plan within 16 weeks of the request for an assessment;
• 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.
12. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
13. The council should consider, with the child’s parent and the parties listed, the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47).
14. 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

15. Child Y lives with their family, attends a mainstream primary school, School 1 and has autism.
16. In late April 2023 Mrs X asked the Council to carry out an Education, Health and Care (EHC) needs assessment for Child Y, the Council acknowledged the request in early May 2023.
17. Mrs X did not hear back from the Council. Both Mrs X and School 1 contacted the Council several times for an update but did not receive a response.
18. In early July 2023 the Council agreed to complete an EHC needs assessment for Child Y.
19. In early August 2023 the Council sent letters to professionals asking for an assessment report, including the educational psychology (EP) service.
20. In early September 2023 Child Y struggled staying in class with their peers and was put on a part-time timetable and received one to one support.
21. In late September 2023 Mrs X made a stage 1 complaint to the Council. She said she was unhappy she had not heard anything from the Council since it agreed to complete a EHC needs assessment for Child Y in early July 2023. She said the Council had not responded to requests for updates and it was past the 20 week legal limit. Mrs X also explained Child Y was on a reduced timetable at School 1 and spent most of their time with a dedicated one to one outside of the classroom.
22. In mid-October 2023 the Council responded to Mrs X’s stage 1 complaint. It said:
• it agreed to carry out an EHC needs assessment for Child Y in early July 2023;
• it apologised for an administration error which caused a 1-month delay in sending out letters to professionals to request their assessment reports. The Council sent the letters in early August 2023 for a response by mid-September 2023;
• the Council contacted the EP service to request it used early July 2023 as the assessment request date. The Council was taking steps to ensure it did not happen again;
• it apologised it had not sent Mrs X a decision not to issue a draft EHC Plan or had a draft EHC Plan, as per the regulations and for the delay so far;
• there was an EP delay, which had seen an increase in demand for its services, the Council had worked hard to increase EP capacity but there was a national shortage;
• it recommended Mrs X speak to School 1 and their Council case worker to discuss ongoing support for Child Y; and
• it could not give a date when the EP would respond but the Council’s customer relations team would keep Mrs X updated by email at least every 4 weeks.
23. Mrs X remained unhappy and the Council escalated her complaint to stage 2 of its complaint process in early November 2023.
24. In early December 2023 the Council sent Mrs X its stage 2 response. It said:
• it apologised again for the delay in securing an EHC needs assessment for Child Y and for the Council’s case workers poor communication;
• it was still experiencing EP delays and as soon as it had an assessment date it would contact Mrs X;
• it had employed more EP’s and put in place virtual assessments;
• the Council’s customer relations team would update Mrs X by email at least every four weeks; and
• Mrs X should complain to us if she remained unhappy.
25. In January 2024 Mrs X arranged, organised and paid for Child Y to attend a forest school one day a week.
26. In late January 2024, the Council emailed Mrs X and said School 1 were accessing support through the Council which would begin after half term and Child Y had still not been allocated an EP.
27. Mrs X remained unhappy and contacted us and told me:
• following the complaint responses the Council had not emailed her at least every four weeks about the progress with Child Y’s EHC needs assessment;
• she met the EP in early March 2024 and the EP assessment was completed in mid-March 2024;
• in late April 2024 the Council complaints team told her she would receive the EHC needs assessment decision the following week;
• in early May 2024 the Council emailed Mrs X, Child Y’s draft EHC Plan but did not send a decision letter; and
• she sent the Council comments on Child Y’s draft EHC Plan but had not yet received Child Y’s Final EHC Plan.

My findings

EHC Plan delays

28. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
29. The Council took nine weeks to decide it would carry out an EHC needs assessment for Child Y, which was three weeks over the six week statutory timescale. This was fault and caused Mrs X time and trouble contacting the Council, frustration and uncertainty about whether the Council would do the assessment.
30. Due to an administration error the Council caused a delay of one month in sending letters to professionals for their assessments. This caused further delay and was fault. The Council has already apologised to Mrs X, contacted the EP service to request they used early July 2023 as the assessment request date and took steps to ensure it did not happen again, which was an appropriate remedy.
31. In line with statutory timescales the Council should have decided within 16 weeks whether to issue Child Y with an EHC Plan, by late-August 2023. The EP report was not available until mid-March 2024.
32. The Ombudsman is aware there is a national shortage of public and private EP’s While I accept there are justifiable reasons why the EHC Plan needs assessment has taken longer than it should, the Ombudsman can make findings of fault where there is a failure to provide a service within statutory timescales regardless of the reasons for that service failure.
33. The delay has had an impact on both Mrs X and Child Y. It caused Mrs X frustration and uncertainty about whether Child Y would have received support sooner. It also meant Mrs X’s appeal rights were delayed.
34. The whole process should take no more than 20 weeks and should have been completed by late September 2023.
35. Once the Council received the EP report in mid-March 2024 it should have issued Child Y’s Final EHC Plan within six to eight weeks. The Council issued Child Y’s draft EHC Plan in early May 2024, without sending a decision letter and had still not issued Child Y’s Final EHC Plan at the time of writing this decision. This is further delay and is fault and the injustice is ongoing, it was also fault not sending a decision letter which caused Mrs X frustration. The Council has agreed to take action to acknowledge this injustice to the start of May 2024 when the Council issued Child Y’s draft EHC Plan. When the Council issues Child Y’s Final EHC Plan, Mrs X will have a right to appeal, if she is unhappy with it.
36. The Ombudsman has already made recommendations to this Council on similar cases. It has been asked to provide evidence of the findings of an external review into its EHC assessment processes and produce and action plan in light of the review findings and what the Council will do to improve its services in case. The Council has also agreed to update the Ombudsman on its progress to address the backlog of requests for EHC needs assessments and ensure it keeps people waiting for EHC decisions updated case. On this basis, no further recommendations were needed.

Part-time timetable

37. Child Y was on a part-time timetable at School 1 from September 2023 and from January 2024 attended forest school 1 day a week, organised and paid for by Mrs X. School 1 put in place one to one provision for Child Y and sought advice from the Council which offered support after February half term 2024. There is no medical evidence Child Y should not have been attending School 1 and should have been attending alternative provision. School 1 was providing and asking for additional support. This was appropriate and there is no evidence to show further intervention would have changed the outcome. The Council was not at fault.

Communication

38. Mrs X and School 1 contacted the Council several times between mid-June and early July 2023 for an update on Child Y’s EHC needs assessment but did not receive a response. The Council did not update Mrs X between early July 2023 and late September 2023 when she sent her stage 1 complaint. This caused Mrs X frustration and time and trouble.
39. The Council’s stage 1 and stage 2 complaint responses said it would keep Mrs X updated by email at least every four weeks. Mrs X said this did not happen and the Council continued to fail to keep her updated in line with its agreement. This caused Mrs X frustration and time and trouble contacting the Council. As explained in paragraph 36 above the Council has already agreed to keep people waiting for EHC decisions updated. No further recommendation was needed.

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Agreed action

40. Within one month of the final decision the Council will:
1. pay Mrs X £750 to acknowledge the frustration and uncertainty caused to her and Child Y by the Council’s failure to issue Child Y’s Final EHC Plan in line with statutory timescales. This remedy is calculated at £100 per month from the date the Council should have issued the Final EHC Plan in mid-September 2023 until the start of May 2024.
2. provide Mrs X with a further financial remedy when it issues Child Y’s Final EHC Plan. This is to acknowledge the continued injustice caused by the delay in issuing Child Y’s Final EHC Plan from early May 2024 up to the date of the Final EHC Plan giving Mrs X a right of appeal to the SEND tribunal. The Council will calculate the payment at £100 per month in line with the recommendation above. The Council will make this payment to Mrs X within one month of the date of the Final EHC Plan.
3. apologise to Mrs X for its continued poor communication and not taking the action it promised in its complaint responses.
4. remind relevant staff of the need to send decision letters telling parents if it will issue an EHC Plan.

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Final decision

41. I have completed my investigation finding fault and injustice. The Council has agreed to take action to remedy the injustice and prevent reoccurrence of the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman