Summary: Mrs X complained about the significant delays in the education, health and care plan process. We find the Council was at fault. This had a significant impact on Mrs X and her daughter. To remedy this injustice caused by fault the Council has agreed to apologise and make symbolic payments.

The complaint

1. The complainant, Mrs X, complains about the significant delays in the education, health and care plan process. She said because of the lack of additional support, her daughter has been unable to attend college.

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The Ombudsman’s role and powers

2. 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)
3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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 spoke with Mrs X about her complaint. I considered all the information provided by Mrs X and the Council.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plans

7. 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

8. 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: 
9.  

• 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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).

Participation of young people in education, employment or training guidance

10. The guidance states tracking young people’s participation is a key element of the Council’s duties. Councils are required to collect information about young people so that those who are not participating, or are not in education, employment or training, can be identified and given support to re-engage.

Summary of the key events

11. On the 19 June 2023, the college made a request for an EHC needs assessment for Mrs X’s daughter, Mx Y. It was noted Mx Y had started at the college in 2022. They had previously taken 18 months out of school due to difficulties. It was noted Mx Y attendance for the year was 30%.
12. The Council agreed to complete an assessment on the 27 July 2023. The assessment discussion notes state the college was to put a transition plan in place to re-engage Mx Y with college for September. It said this was to also be in place in case Mx Y’s attendance dropped again.
13. The college contacted the Council in October 2023. They asked if the Council had made a decision on whether to assess Mx Y. They said Mx Y had continued to struggle to engage. But they said staff continued to put support in place and numerous meetings had taken place to try and engage Mx Y. But it was noted Mx Y had extreme anxiety.
14. The Council said it was waiting for an educational psychologist (EP) assessment to be carried out.
15. Mrs X contacted the Council in October 2023. She said the college would be removing Mx Y from the register as they don’t think they can meet their needs. Mrs X said the college think Mx Y needs 1:1 support and said they cannot facilitate this without an EHC Plan.
16. In response the Council said the college should be putting support in place if they feel Mx Y needs 1:1. It said the college can apply for funding without having the EHC Plan. It agreed to contact the college about this.
17. The Council spoke with the college in October 2023 who confirmed Mx Y had been withdrawn from the college. They said this was because Mx Y had not been able to attend due to mental health difficulties. The college suggested Mx Y could start again after Christmas. The Council advised them they could apply for top up funding if needed. It was noted the college would contact Mrs X about this.
18. The Council directed Mrs X to Mx Y’s GP for health support. Mrs X was also given information about a programme which works with unemployed young people facing challenges and barriers getting into work or education.
19. Mx Y’s dad, Mr X contacted the college and Council in November 2023 and asked what the current plans were for Mx Y’s education. He said communication had stopped.
20. In response, the Council apologised for the delay in completing the EP assessment. It said this was due to the EP shortage. It said it spoke with the college who had agreed to apply for funding with the possibility of Mx Y returning after Christmas. The Council contacted the college to see if this had been actioned.
21. Mr X contacted the Council and college in early January 2024. He asked for an update and said the lack of education was having a huge impact on Mx Y. He asked if home education could be considered whilst they wait.
22. In response the Council said until an EHC Plan was in place, there was nothing it could offer. It asked the college if anything could be done in the meantime such as reintegration meetings or outreach work.
23. Mrs X complained to the Council in late January 2024. She said it had been almost 2 weeks since the request for an assessment. She said Mx Y had been removed from the college and college had since ignored them and the Council.
24. In response to Mrs X’s complaint, the Council said:
• the request for an assessment was logged on the 19 June 2023 and it agreed to proceed with an assessment on the 27 July 2023;
• letters were sent out to professionals for their assessment reports to be returned by the 7 September 2023;
• it apologised for the delay and said it was awaiting an EP assessment. It explained there was a national shortage of EPs;
• Mrs X would be contacted with updates every four weeks. But said it was unable to provide accurate estimations; and
• it could see Mx Y’s attendance was low but said college had benefited from training. It said there was evidence some practical strategies were in place and said in the interim Mx Y should continue to work with the college SEND team.
25. Mrs X questioned the Council’s response as she said the college had removed Mx Y from their register. She said the college had now refused further contact and asked for her complaint to be escalated.
26. The Council responded at stage two of its complaint’s response in February 2024. It said:
• at the time of the stage one response, it did not know the college had removed Mx Y;
• the Council previously advised the college they could apply for funding whilst the assessment process continued which would allow them to make the provision;
• it could see the college did not engage with this process and did not provide the Council with an appropriate response in terms of reasonable adjustments they were using; and
• it had asked for this to be escalated with college and for a meeting to be arranged to discuss what provision can be made available in the interim.
27. Mrs X said she was happy to attend a meeting and get a temporary plan in place.
28. In April 2024 the Council contacted Mrs X said it anticipated that Mx Y would be allocated an EP next month.
29. An EP assessment was completed in May 2024 and the draft plan was issued in June 2024. Mrs X gave the Council details of her preferred college for the Council to consult with.
30. The Council consulted with the college on the 24 June 2024. But the college did not receive this until July due to some issues with receiving it.
31. The EHC Plan was finalised on the 16 July 2024. But after Mrs X raised some concerns with this plan, the Council issued a further EHC Plan on the 22 July 2024.

Analysis- was there fault by the Council causing injustice?

32. The college requested the needs assessment on the 19 June 2023 and the Council agreed to assess on the 27 July 2023. But the EHC Plan was not finalised until July 2024.
33. There is service failure due to the Council’s inability to commission an EP within the statutory timescales. The LGSCO is aware of the problems arising from a national shortage of EPs, which in turn has created a significant delay in the completion of Mx Y’s EHC Plan.
34. The Council has acknowledged delay as the EHC Plan should have been finalised by the 6 November 2023. In recognition of the impact this delay had, it has recommended a payment of £800. This is sufficient and in line with our guidance on remedies.
35. We acknowledge the proactive steps the Council is taking to try and resolve the lack of EPs. This includes:
• contracting additional locum/associate support;
• implemented internal measures to ensure assessments are as efficient as possible whilst maintaining a high quality of assessment;
• contracted with an external provider of EP’s to support with assessments for children and young people whose advice is out of timescales.
36. In July 2023, the Council’s notes stated the college would be putting a reintegration plan in place for September 2023. But Mrs X made the Council aware in October 2023 that the college planned to remove Mx Y from the register as they could not meet their needs. In response, the Council contacted the college and advised they could apply for additional funding. The college said Mx Y could start again after Christmas. The college agreed to speak with Mrs X about this.
37. In November 2023, Mr X asked for an update on the current plan. The Council contacted the college to see if it had applied for funding. There is no response noted from the college. Mr X asked for a further update in January 2024. The Council contacted the college and asked if any reintegration meetings could take place. Again, there was no response noted from the college.
38. In the Council’s stage two response in February 2024, it agreed to arrange a meeting with the college. But this meeting did not take place. The Council said its officer did not delegate the arrangements before leaving the Council. The Council also said due to human error the consultation request was not sent to the college until June 2024. It said this meant there was not time to schedule a taster day before the end of term.
39. Between October 2023 when the Council became aware the college had removed Mx Y to December 2023, we could not criticise the Council. This is because the Council had advised the college they could apply for more funding as the college had agreed Mx Y could return after Christmas. The Council chased the college about this in November 2023 when it became aware the college had not contacted Mr and Mrs X.
40. But in January 2024, Mr X asked for a further update. The Council contacted the college again asking them to arrange a reintegration meeting. In February 2024, the Council agreed to arrange a meeting with the college which Mrs X agreed to. But as stated in paragraph 37, this meeting did not take place. This is fault. I could not say what education would have been provided had this fault not occurred as the college had taken Mx Y of its register. But this did cause uncertainty to Mx Y and Mrs X. The Council has recommended a payment of £250 to both Mx Y and Mrs X to recognise the impact of faults in communication following the stage two complaint response. I believe this is sufficient and in line with our guidance on remedies.

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Recommended action

41. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Mrs X and Mx Y with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Mx Y £800 in recognition of the impact the delay in finalising the plan had on them;
• pay Mrs X and Mx Y £250 to recognise the impact of faults in communication.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. There was fault by the Council. The actions the Council has agreed to remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman