Summary: Mrs X complained the Council delayed in issuing her child, Y’s, Education, Health and Care Plan and failed to communicate with her during the process. The Council was at fault which caused Mrs X and Y frustration and distress and meant Y missed out on some special educational provision. The Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complained the Council delayed in issuing her child, Y’s Education, Health and Care Plan and failed to communicate with her during the process. She says this has delayed Y’s transition to secondary school, causing Y distress and uncertainty. She wants the Council to compensate her and address the issues behind its failings.

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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. 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)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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. 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 the final decision on this complaint with Ofsted.
7. 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

8. I have discussed the complaint with Mrs X and considered the information she provided. I also considered information provided by the Council.
9. Mrs X and the Council have 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

Law and guidance

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.
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.
• 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.
• 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.
• 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.
12. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• psychological advice and information from an Educational Psychologist (EP).
• 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. 

The Council’s complaint process

13. The Council operates a two-stage complaint process. It says it will respond to stage one complaints within a maximum of 20 working days, and stage two complaints within an extra 20 working days.
14. If the Council decides there is no new information on a complaint and it has nothing more to add, it can reject a stage 2 request and signpost a person to the Ombudsman.

What happened

15. Mrs X requested an EHC Needs Assessment through her child, Y’s, primary school in late 2022, in preparation for Y’s transition to secondary school in September 2024. The Council acknowledged the request on 14 December 2022. On 13 January 2023 the Council wrote to Mrs X saying it had decided to reject her request for an assessment. It said Y’s needs could be met through existing SEN support within Y’s current school.
16. Mrs X requested mediation and appealed to the Tribunal. On 26 May 2023 the Council reviewed new information from Y’s school and decided it would carry out an EHC Needs Assessment. It told Mrs X on 14 June 2023. At the same time, it requested advice and information from an Educational Psychologist and other relevant professionals. The Educational Psychologist completed Y’s report on 19 October 2023, while a physiotherapist submitted their report on 4 December 2023.
17. In early 2024 Mrs X complained to the Council about the delay in completing the assessment and its poor communication.
18. The Council issued a draft EHC Plan on 2 February 2024. Mrs X responded to the draft within 15 days highlighting areas she disagreed with. In March 2024 Mrs X chased the Council for a response to her complaint. The Council told Mrs X it was still liaising with the service.
19. The Council issued an amended draft EHC Plan on 4 April 2024. It responded to Mrs X’s complaint on 5 April. It accepted it had failed to meet the timescales for completing Y’s assessment. It said this was due to a delay in receiving the Educational Psychologist’s and physiotherapist’s reports. It apologised to Mrs X.
20. Mrs X continued to disagree with the content of the Plan and responded to the updated draft on 8 April 2024. Mrs X escalated her complaint to stage two on 10 April 2024. The Council rejected Mrs X’s stage two request. It said it had already upheld the complaint and apologised.
21. The Council issued a third draft EHC plan on 31 May 2024, and Y’s final EHC Plan on 14 June 2024. Mrs X was satisfied with the content of the plan.

The Council’s response to our enquiries

22. We asked the Council to provide us with an update on its progress in addressing its backlog of EHC needs assessments. In response the Council said it has set up a new team to improve connections across its SEND service. This included new roles and extra staff, including EHC Plan writers, SEND System Navigators and Resolution Officers. In November 2024 the Council says it will begin implementing a new case management system to improve oversight of the service.

My findings

EHC Needs Assessment and Plan

23. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council accepted Mrs X’s assessment request on 14 December 2022. It rejected the request on 13 January 2023. This was within the six weeks the Council had to decide whether to assess Y or not. The Council was not at fault.
24. Following new information from Y’s school the Council decided to assess Y at a panel hearing on 26 May 2023. Having agreed to assess Y the Council should have issued Y’s Plan within 14 weeks of the panel. This was 18 August 2023. The Council issued Y’s EHC Plan on 14 June 2024; a delay of ten months. This is fault.
25. EHC needs assessments must include advice from an Educational Psychologist. The Council should have ensured it received the psychologist’s advice within six weeks. It took 18 weeks to receive this advice. It then took a further four months to issue the draft EHC Plan.
26. The Council has not met these timescales due to the shortage of Educational Psychologists and the increased demand for EHC needs assessments. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in progressing Y’s EHC needs assessment is fault (service failure). I cannot say whether the delay that occurred before the Educational Psychologist gave their advice meant Y lost out on special educational provision. This is because the advice reflected Y’s needs at the time of the assessment, not necessarily as they would have been when it was originally due. However, the fault caused Mrs X and Y frustration, distress and uncertainty.
27. Once the Council received the Educational Psychologist advice in October, it should have issued Y’s final EHC Plan within around six weeks. It took the Council 34 weeks to issue the final EHC Plan. This was 28 weeks too long and was fault.
28. I am satisfied on balance, that the EHC Plan the Council issued in June 2024 is not materially different from what it would have been if the Council had issued the Plan in early November 2023, six weeks after it received the Educational Psychologist advice. During this time Y continued to attend school, with the records showing Y achieving in line with expectations for their age. While the EHC Plan should have been in place from November 2023, its outcomes are focused on Y’s work at secondary school in Key Stage 3.
29. Therefore, while Y missed around two terms of the special educational provision in the EHC Plan I cannot say this resulted in a complete loss of education provision. We typically recommend between £900 and £2400 per term in recognition of lost provision. The figure can be lower when considering any educational provision made during the period and whether additional provision can remedy some or all of the loss.
30. Considering Y was attending school during this period, and the provision in their EHC Plan, I have recommended £900 for the missed special educational provision and delayed transition, in line with our Guidance on Remedies.
31. The Council has explained the efforts it is making to resolve the delays in the EHC needs assessment process. Because the Council is already taking suitable steps to address the delays, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

Complaint handling and communication

32. The Council says it will respond to stage one complaints within a maximum of 20 working days. It accepted Mrs X’s complaint on 2 February 2024 and responded on 5 April 2024, 44 working days later. This is fault. Mrs X requested a stage two complaint on 10 April 2024. The Council rejected this on 17 April 2024, saying it had already upheld the complaint and had nothing more to add. This is a decision the Council was entitled to make and was not fault.
33. Mrs X says the Council has failed to communicate with her throughout the process. When the Council agreed to assess Y, it responded to Mrs X’s emails asking for information about who it was consulting and a timescale for the assessment. There was limited correspondence between Mrs X and the Council between July 2023 and January 2024, as the Council waited for various reports. Once the Council issued Y’s first draft EHC Plan in February 2024 it then responded regularly to Mrs X’s queries and emails before issuing the final EHC Plan in June 2024. While it would have been good practice to keep Mrs X informed between July 2023 and January 2024, I cannot say this was fault.

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Agreed actions

34. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise to Mrs X for its delay in issuing Y’s final EHC Plan and the frustration caused by its delayed complaint response. 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.
2. Pay Mrs X £300 to recognise the distress and frustration cause by the delay in assessing Y. This equates to around £100 per month for the time between when it should have received the Educational Psychologist’s advice to when it received that advice.
3. Pay Mrs X £900 to recognise the impact of the loss of around two terms of special educational provision on Y.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation and found fault by the Council which caused injustice, which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman