Summary: There was fault by the Council. It took more than double the legal time frame to issue a final Education Health and Care Plan for Miss B’s son. The Council’s failings caused Miss B significant distress and frustration and meant that her son did not have the support he needed to access all of his schooling. The Council has implemented an action plan to improve its service and is keeping this under regular review. The Council has agreed to apologise to Miss B; make payments in recognition of the impact on her and her son; and reimburse Miss B the cost of the private Educational Psychologist assessment it relied on.

The complaint

1. Miss B complains that the Council:
• took too long to issue the final Education Health and Care (EHC) Plan for her son; and
• failed to deal with her complaints about this properly.
2. Miss B says that Council’s failings meant that her son did not receive the support he needed and this had a significant impact on him. Miss B says it also had an impact on her as she had to pick her son up from school when he could not join in with certain activities and had nobody to support him. She says she also had to instruct a private Educational Psychologist to assess her son because the Council was taking too long to do this, and involve a solicitor.

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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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. 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

6. I considered the information provided by Miss B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement.
7. 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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What I found

The law and guidance

8. 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. 
9. 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.
• Where a parent appeals but and the Council then concedes the appeal, it is treated as if it was determined in the parent’s favour. The Council must complete the needs assessment within four week of the date it notified the Tribunal that it would not oppose the appeal. If it decides to issue an EHC Plan, it must do so within 14 weeks of the date it conceded the appeal.
• 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.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

10. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

11. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

The Council’s complaints process

12. The Council’s complaints process has two stages. It should reply to a complaint at stage one within 15 working days. The Council can extend this time frame by a further ten working days where needed, but it must write to the complainant within the first two weeks to explain the reasons why. The complainant can seek a review of the response at stage two of the process. The Council should respond to a stage two complaint within 20 working days.

What happened

13. Miss B’s son has special educational needs. Miss B asked the Council to assess these for an EHC Plan. The Council refused this request and Miss B appealed to the tribunal. On 23 August 2023, the Council conceded the appeal. This meant that it must complete its EHC needs assessment by 20 September, and if it decides to issue a Plan it must do so by 28 November 2023.
14. The Council must consult an Educational Psychologist as part of the EHC needs assessment. However, due to capacity, the Council was unable to allocate the case to an Educational Psychologist. Miss B chased the Council for progress on 27 September (the deadline to complete the assessment having passed). The Council told her that it still had not been able to allocate the case to an Educational Psychologist.
15. In mid-October, Miss B told the Council she would instruct a private Educational Psychologist. The Council apologised to her for the delay.
16. At the beginning of January 2024, the Council again apologised to Miss B for the delay. It still had not allocated her case to an Educational Psychologist. Miss B then sent the Council the Educational Psychologist assessment she had obtained privately. By this stage, the deadline for the Council to have issued the final Plan had passed some six weeks ago, but without an Educational Psychologist’s assessment, the Council could not proceed.
17. The Council decided that it could use the private Educational Psychologist’s assessment, Miss B had provided. The Council notified Miss B that it would issue an EHC Plan.
18. In mid-February, Miss B complained to the Council about the lack of progress. She told the Council that her son was not supported in school. She was having to pick him up early and take him in late because there was nobody to support him during certain hours at school.
19. The Council issued the draft EHC Plan on 7 February. Miss B complained to the Council. She said nobody was responding to her contact, all the deadlines had been exceeded, and the draft Plan was poorly written.
20. The Council issued the final EHC Plan on 3 April. This was 18 weeks over the legal deadline. Miss B asked and the school disputed parts of the Plan and the Council issued a revised final Plan on 15 April 2024. Miss B did not agree with parts of the Plan but she was only able to appeal this when the Council issued the final Plan and not before.
21. Under the final EHC Plan, Miss B’s son was entitled to significant 1:1 support throughout the day with a specially trained and experienced member of staff to help him access all his schooling. He was also entitled to regular occupational therapy.
22. In the meantime, Miss B had complained to the Council about the delay. Miss B first made a formal complaint on 27 March 2024. Under its process, the Council should have replied by 18 April. On 19 April, the Council had not contacted Miss B about her complaint and so she asked the Council to escalate it to stage two.
23. The Council responded on 25 April to the stage one complaint. It apologised for the delay in issuing the EHC Plan. It said it had been in regular contact with Miss B from when it allocated the case to an officer to draft the Plan.
24. On 14 May, Miss B chased the Council for a response to her stage two complaint. The Council did not respond and so Miss B complained to the Ombudsman. The Council has explained that it did not respond to the complaint due to a human error.

Findings

25. There was fault by the Council. It took too long to complete its assessment of the child’s special educational needs, and it was only able to do so because Miss B paid for a private Educational Psychologist’s assessment. It did not keep in touch with Miss B during the delay unless she chased it, and it gave her no information about when her case might be allocated.
26. The Council issued the final EHC Plan, but this was over 18 weeks late. This means it took more than double the legal timeframe to issue the final Plan.
27. The Council also failed to respond to deal with Miss B’s complaints in line with its process. The stage one response was slightly late. The Council’s policy says it can extend the timeframe where needed, but it failed to write to Miss B to do that.
28. The Council completely failed to respond to Miss B’s stage two complaint despite her and the Ombudsman chasing it to complete the process.
29. The Council’s failures had a significant impact on Miss B and her son. The delay caused Miss B distress and frustration, and meant that she was unable to appeal the EHC Plan any sooner.
30. I appreciate that Miss B decided herself to consult a private Educational Psychologist, however when she did this, the EHC Plan was already overdue, the Council had not been able to arrange for an Educational Psychologist to assess K, and had not told Miss B when it might be able to do so. In these circumstances it is understandable that Miss B would consult privately. The Council then went on to use this assessment for the EHC Plan. For this reason, I have recommended that the Council reimburse Miss B the cost of this.
31. It is likely that the Council delay in issuing the final Plan meant that Miss B’s son did not receive the support that he needed to meet his needs at school. His EHC Plan provision contains 1:1 time with a specifically trained learning support assistant throughout the school day, as well as some specialist occupational therapy. The Council should have issued the final Plan by 28 November 2023 and instead issued it on 3 April 2024.
32. The Council was able to fund catch up sessions of occupational therapy but overall, Miss B’s son lacked his full provision for around 14 school weeks.
33. I understand that the school did its best to support K, but it could not provide that level of support he needed without the funding and the EHC Plan. Miss B has described how her son had to miss out on lessons, and other parts of the school day as there was nobody to support him to take part. This is likely to have had a significant impact on her son.
34. The Council’s fault in the complaints process also put Miss B to additional time and trouble.
35. In an earlier investigation of a separate complaint by a different family, the Council agreed to our recommendations to devise action plans to make sure it issues EHC Plans on time, and to improve the Educational Psychologist availability.
36. As part of my investigation of Miss B’s complaint, I asked the Council to share whether the action plans had improved these issues. The Council has explained that as of October 2024, there were 1138 open EHC Needs Assessments and 54% of these had exceeded the legal deadline of an EHC Plan within 20 weeks. The average wait time for a final EHC Plan was 33 weeks. The Council explained that although these requests were taking too long, the Council had received more requests for an EHC Plan than usual.
37. The Council has increased the number of educational psychologist assessments it has been able to complete by around 40%.
38. I recognise that the Council has made some improvements, although there clearly are still shortcomings it has to address. I have established that the Council reviews the progress of both services weekly, and this information is considered monthly so that the action plan can be altered to make sure improvement continues. As such I have made no further recommendations for service improvements.

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Action

39. Within one month of the date of this decision, the Council will:
• Apologise to Miss B. 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 in my findings.
• Make a symbolic payment to Miss B of £400 in recognition of the distress it caused her when it failed to issue the final EHC Plan on time, and when it delayed her right of appeal.
• Make a symbolic payment to Miss B of £200 in recognition of the frustration it caused her and the additional time and trouble it put her to when it did not handle her complaint to it properly.
• Pay to Miss B £1,400 in recognition of the likely missed provision. This represents £100 per school week of delay in issuing the final EHC Plan. Miss B may use this for the benefit of her son as she sees fit.
• Reimburse Miss B the cost of the private Educational Psychologist’s assessment on which the Council relied.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation. There was fault by the Council causing Miss B and her son injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman