Summary: Mrs X complained about delays in the Education, Health, and Care Plan process and in issuing a final EHC Plan for her son. We found the Council’s failure to adhere to the statutory timeframe is fault. This fault has caused Mrs X and her son an injustice.

The complaint

1. The complainant, Mrs X complained about delays in the Education, Health and Care Plan process and in issuing a final EHC Plan.
2. Mrs X also complains about poor communication from the Council and delays in responding to her complaints.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X; and
• Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education, Health and Care Plan

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 council can do this.
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: 
• 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).
• 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.

What happened here

9. Mrs X requested an EHC Needs assessment for her son, Y on 13 November 2023. The Council agreed to carry out an assessment on 20 December 2023. It then agreed on 26 February 2024 to issue an EHC Plan. However the Council advised it had not at this stage received the Educational Psychologist’s (EP) advice.
10. On 25 March 2024 Mrs X made a formal complaint about the delay in the issuing an EHC Plan. Mrs X had yet to receive a draft Plan and was concerned the final EHC Plan would not be issued within the statutory timeframe. She also complained that council officers were ignoring her emails.
11. Mrs X then chased the Council for a response on 17 April 2024.
12. The Council responded on 9 May 2024 and advised the delay in issuing a draft EHC Plan was due to it not having received the EP’s advice. It apologised for this delay and for the lack of communication from the SEN team. The Council said it would ensure Y’s EHC Plan coordinator provided regular updates and informed Mrs X when they received the EP report.
13. The Council explained it was investing additional resources to recover the position as it did not want families to wait longer than they should. This included additional funding to increase the capacity of EPs, although there was a national shortage in this field.
14. As Mrs X was not satisfied by the Council’s response she asked for her complaint to be escalated to the next stage of the Council’s complaint procedure. Mrs X did not consider staff shortages were a valid explanation for the delay.
15. The Council reviewed Mrs X’s complaint and responded on 7 June 2024. It said the shortage of EPs had a significant impact on the Council’s ability to produce and finalise EHC Plan’s. The Council again said it was working hard to resolve this but the national shortage of EPs makes recruiting suitably qualified people more difficult.
16. The Council acknowledged this did not help Mrs X’s situation and apologised for the delays. It said Y’s EHC Plan coordinator would contact her within seven days with an update and a date when she could expect to receive Y’s plan.
17. The Council received the EP advice on 26 June 2024 and issued a draft EHC Plan on 8 July 2024. It then issued a final EHC Plan on 20 August 2024.
18. Mrs X says this delay caused her and Y an inordinate amount of stress and anxiety. She wanted the Council to issue a plan naming a post-16 college so that Y had some certainty after a long period of worry and stress.
19. In response to my enquiries the Council has confirmed the action it is taking to reduce delays caused but the shortage of EPs. It says it is working to increase the capacity across its EP service. It has allocated financial resources to expand the Educational Psychology team to ensure it can not only keep up with demand but also offer early intervention and preventative work. The Council says it has recruited two trainee EPs and widened its associate pool to work on the backlog of assessments.
20. The Council says it has reviewed and refined the supervision and support for all its EHCP coordinators across the service to ensure they are able to fulfil their duties.

Analysis

21. 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. It took the Council over 35 weeks to carry out an EHC needs assessment and issue Y’s EHC Plan, instead of the 20 weeks required by the Regulations and Code. This was a delay of 15 weeks.
22. Councils must seek EP advice as part of an EHC assessment. This should be received within six weeks of the council requesting it. The Council is responsible for the commissioning and delivery of the EP advice and information. The delay in receiving the advice was due to a nationwide shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons why the EP advice took longer than it should have, the delay was nonetheless fault.
23. The fault caused Mrs X and Y frustration, distress and uncertainty. It also delayed Mrs X’s right of appeal.

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Agreed action

24. The Council has agreed to:
• apologise to Mrs X and Y for the delays in the EHC Plan process and the distress, frustration, and uncertainty this caused;
• pay Mrs X £400 to acknowledge the distress, frustration and uncertainty caused to her and Y by the council’s failure to issue her final EHC plan in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the council should have issued the final EHC plan in April 2023 until the date it issued the draft plan in August 2024.
• remind relevant council officers of the importance of keeping parents updated during the Education, Health, and Care Plan process, particularly in situations where statutory timescales are not met.
25. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

26. The Council’s failure to issue the final EHC Plan within the statutory time frame is fault. This fault has caused Mrs X and Y an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman