Summary: Mr X complained the Council delayed completing his son Y’s Education, Health and Care (EHC) needs assessment in line with statutory timescales. He says it also delayed issuing an amended EHC Plan following an annual review. The Council was at fault because it failed to decide whether to issue Y with an EHC Plan within the statutory timescales, caused by a delay in obtaining Educational Psychologist advice. This caused a further delay in issuing Y’s final EHC Plan. The Council then failed to issue the final amended Plan within timescales after an annual review the following year. The Council has agreed to make a payment to Mr X to acknowledge the distress, frustration and uncertainty this caused him.

The complaint

1. Mr X complained the Council failed to complete his son Y’s Education, Health and Care (EHC) needs assessment within statutory timescales due to a delay in obtaining Educational Psychologist (EP) advice. This in turn caused a delay in issuing Y’s EHC Plan which meant he did not receive provision for most of the summer term. He says the Council then failed to issue the final amended Plan within timescales after the annual review meeting in 2024.
2. Mr X also complained it delayed responding to his complaint about this.
3. This has caused him distress, frustration and uncertainty about the provision his son would receive.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended).
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)
8. 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

9. I spoke to Mr X about his complaint and considered information he provided.
10. I considered information the Council provided.
11. Mr X and the Council had an opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Relevant Law and Guidance

EHC Plans

12. 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.
13. 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 Code is based on the Children and Families Act 2014 and the SEND 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 a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

14. 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.
15. 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. The appeal can be against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.

Annual reviews

16. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within twelve months of the first EHC Plan and within twelve 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 take place. The process is only complete when the council issues a decision about the review.
17. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
18. When the decision is to amend, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within four weeks of the annual review meeting. The Council must then issue any final amended plan within eight weeks of this ‘Amendment Notice’ (R (L, M and P) v Devon County Council. Therefore, a final Plan must be issued within 12 weeks of the review meeting.

Council’s complaint policy

19. The Council’s complaint policy states it will investigate and respond to a stage one complaint within 20 working days. If a person escalates their complaint, the Council will investigate and respond to a stage two complaint within another 20 working days.

What happened

20. Mr X has a son, Y of secondary school age. Y has special educational needs. In September 2022, Mr X asked the Council to carry out an Education, Health and Care (EHC) needs assessment.
21. The Council initially refused to carry out the assessment. Mr X appealed the decision to the SEND tribunal. However, after receiving further evidence from Y’s school, the Council conceded the appeal and decided to carry out the assessment. The Council notified Mr X of its decision in November 2022. It requested Educational Psychologist (EP) advice the same day. The Council should have received the EP advice by January 2023 and ultimately it should have issued the final EHC Plan by March 2023.
22. Mr X raised a stage one complaint in January 2023 because of delays in allocating an EP to Y’s case. The Council received the EP advice in March 2023, and it issued the draft EHC Plan the following month.
23. The Council issued a stage one complaint response in April 2023 apologising for exceeding the 20-week statutory timescale to issue a final Plan. The Council attributed this to the high demand of requests for new assessments impacting on the availability of EPs.
24. Mr X remained dissatisfied and escalated his complaint to stage two in May 2023.
25. The Council issued Y’s final EHC Plan in June 2023. Section F outlined the specialist provision Y was entitled to which included:
• Access to a key worker who is available to him throughout the school day;
• Pre-teaching of topic vocabulary so he understands the terminology to access his work;
• Input from an Occupational Therapist to support his development of physical and sensory skills;
• Weekly intervention to develop interaction skills.
26. Mr X received a stage two response in January 2024 confirming the Council had issued Y’s final EHC Plan. The Council also apologised for its delay in issuing a stage two response.
27. In January 2024 the Council held an annual review of Y’s EHC Plan. The Council proposed to amend the EHC Plan. Therefore, it should have issued the final amended EHC Plan within 12 weeks of the annual review meeting, which was mid-April 2024.
28. Mr X raised a further complaint in April 2024 because he was yet to receive a draft copy of the amended EHC Plan.
29. The Council responded in May 2024 apologising for exceeding timescales in the annual review process. It issued the final amended EHC Plan the same day.
30. Mr X was unhappy with the Council’s handling of the matter and complained to us.

Council’s response to our enquiries

31. The Council says it initially refused to carry out an EHC needs assessment because it was unclear what progress Y was making academically and what interventions were already in place to support him at the time. The Council says it then received further evidence including an EP action plan outlining what the school needed to provide Y to support him. Upon receiving this, it reversed its decision and decided to carry out the assessment.

My Findings

EHC needs assessment

32. There was no fault in how the Council initially considered Mr X’s assessment request. It considered the request and concluded there was insufficient evidence regarding Y’s progression and the support already available to him. Mr X then had a right of appeal which he used. As he used his right of appeal, we cannot investigate this part of the complaint. Upon receiving further evidence, the Council decided to reverse its decision.
33. Following the Council reversing its decision, and conceding the case, it had to follow statutory timescales set out in the law and the code. Therefore, the Council should have decided whether to issue a Plan at the start of February 2023 and issued the final Plan at the start of March 2023.
34. The EP advice should have been available to the Council by mid-January 2023 in order for it to have met the February deadline. The EP report was not complete until March 2023 which was a delay of eight weeks and fault. It caused a delay in the Council deciding whether to issue Y with an EHC Plan. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases. This in turn had a knock-on effect which meant the Council did not issue the final EHC Plan until late June 2023. This was a delay of 16 weeks.
35. In total the Council took 36 weeks to assess Y and issue his final EHC Plan instead of the 20 weeks statutory timescale.
36. I cannot say whether the delay that occurred before the EP gave their advice in March 2023 meant Y lost out on special educational provision. This is because the EP advice reflected Y’s needs as they were in March 2023, not necessarily as they would have been when it was originally due.
37. However, after the EP gave their advice, the Council took too long to finalise Y’s EHC Plan. With EP advice in hand, it should have issued the final Plan by late April 2023. It did not do so until late June which is a delay of nine weeks which was fault. Had the Council issued Y’s EHC Plan in line with statutory timescales, he would have had that plan in place from April 2023. This means he would have been entitled to provision in line with the Plan for most of the summer term. Due to the delays Y lost the opportunity to receive this provision. This fault caused Mr X and Y distress, frustration and uncertainty about the provision Y would receive.
38. The Council has explained what action it is taking to reduce the backlog in the EHC needs assessment process. We have also found similar fault with the Council on a separate case. Following that case, the Council agreed to create and provide us with an action plan addressing its EP shortages. Therefore, it does not require a further service improvement.

Annual reviews

39. Y’s annual review took place in late January 2024. Following this, the Council proposed to amend the Plan. It had 12 weeks to do this from the date of the annual review. Therefore, the Council should have issued the final amended Plan by mid-April 2024. However, it did not issue this until May 2024. This was a delay of approximately four weeks outside statutory timescales which was fault. This caused Mr X distress, frustration and uncertainty about the provision Y would receive.
40. We have found similar fault with the Council on a separate case. Following that case, the Council agreed to remind relevant staff of the statutory timescales for issuing a draft and amended final EHC Plan following an annual review meeting. Therefore, it does not require a further service improvement.

Complaint handling

41. Mr X raised a stage one complaint in January 2023 and should have received a response from the Council within 20 working days. Mr X did not receive response until April 2023. This was a delay of approximately eight weeks which was fault.
42. Mr X raised a stage two complaint in May 2023 and should have received a response from the Council within 20 working days. Mr X did not receive a response until January 2024. This was a delay of approximately 30 weeks which was fault.
43. These delays caused Mr X distress, frustration, and uncertainty.

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Agreed action

44. Within one month of the final decision the Council agreed to take the following action:
1. Pay Mr X £200 to acknowledge the distress, frustration and uncertainty caused to him by the Council’s delay in deciding whether to issue Y with an EHC Plan caused by the delay in obtaining advice from an Educational Psychologist.
2. Pay Mr X £600 to recognise Y’s loss of opportunity to receive provision in line with his EHC Plan between April and June 2023 caused by the delay in issuing the final Plan after it had obtained EP advice.
3. Pay Mr X £200 to recognise the distress, frustration and uncertainty caused by the Council’s delay in issuing both the final amended Plan following the annual review and the complaint responses.
4. Remind complaint handling staff to ensure they provide complaint responses within timescales.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman