Summary: Miss X complained the Council did not issue her child with an Education, Health and Care Plan within statutory time frames. Miss X says this caused unnecessary and avoidable distress, delayed her appeal rights and meant her child’s needs were not met. We find the Council at fault which caused Miss X and her child injustice. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complains about the Council’s handling of her child’s special educational provision. Specifically, she complains the Council:

1. Failed to issue the Education, Health and Care Plan within statutory time frames; and
2. Failed to name an appropriate specialist placement in the plan.

2. Miss X said this means her child’s needs are not met which impacts on their mental and physical health. She says the delay caused unnecessary and avoidable distress and delayed her appeal rights.

Back to top

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. 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)
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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. 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.

Back to top

What I have and have not investigated

9. The EHC Plan is set out in sections. We cannot direct changes to the sections about a child’s needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
10. I will therefore not considered part b of the complaint as it is reasonable for Miss X to use her right of appeal to the SEND Tribunal.
11. For this reason, I have only investigated part a of the complaint.

Back to top

How I considered this complaint

12. I considered the information and documents provided by Miss X and the Council. Miss X and the Council had an opportunity to comment on a draft of this decision. I have considered all comments received before making this final decision.
13. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
14. I also considered the relevant statutory guidance, as set out below. I have also considered the Ombudsman’s published guidance on remedies.

Back to top

What I found

What should have happened

15. 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.
16. 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. 
• 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.
• As part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist (EP) and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice.
• 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.

17. There is a right of appeal to the SEND (Special Educational Needs and Disabilities) Tribunal about the educational provision and placement named in a child’s EHC Plan. This appeal right is only engaged once the final EHC Plan and accompanying letter have been issued.

What happened

18. Miss X’s child, B has health conditions.
19. In late May 2023, Miss X asked the Council for an EHC assessment for B. The Council agreed to begin an assessment the same day.
20. The Council received the EP advice for the EHC assessment in late October.
21. In February 2024, Miss X removed B from school. She said this was because the school was not meeting B’s health needs.
22. In early March 2024, the Council decided to issue an EHC Plan for B.
23. In late May, the Council issued the final EHC Plan.
24. The final EHC Plan says B needs to be taught in small groups daily, with a high adult to child ratio, for all learning. It also says B needs adult supervision to monitor symptoms of their condition throughout the day as needed.
25. The Council uploaded a copy of the final EHC Plan and a copy of the accompanying letter detailing Miss X’s right of appeal onto its website. It did this on the same day the final EHC Plan was issued.
26. Miss X emailed the Council twice because she did not receive the letter with her appeal rights. The Council responded to her email in mid-June and confirmed her right of appeal but did not provide a copy of the letter.
27. Miss X received an automated email telling her the letter was on the website several days later, three weeks after the Council says it issued the EHC Plan and letter.
28. Miss X is still unable to find the letter on the website and so has not had sight of it. She contacted the Council in June and arranged a phone call, but the Council did not call her as arranged.

Analysis

29. 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 request for an assessment for B was made in May 2023 and the Council made its decision to assess the same day. This was in line with the timescale so was not fault.
30. Councils must seek EP advice as part of an EHC assessment. This should be received within six weeks of the council requesting it. In this case, it should have been received in early July. The Council received it in late October. The Council apologised to Miss X and said the national shortage of EPs and an increase in demand in assessments lead to the delay. The EP’s advice was almost four months late. The Council is responsible for the commissioning and delivery of the EP advice and information. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. Therefore, although I accept the reason for the delay was outside the Council’s control, it is still fault. I find this is service failure as I have set out in paragraph four above.
31. The EP advice detailed B’s needs as they were in October 2023. I cannot say for certain if the EP advice would have been the same if the assessment had been completed without delay. Therefore, I cannot say whether the delay in receiving EP advice meant B lost out on special educational provision. However, the delay in the EHC assessment caused Miss X significant uncertainty and frustration.
32. The Council received EP advice in late October 2023 and was therefore then able to decide whether to issue an EHC Plan. It made its decision to provide B an EHC Plan in early March 2024. There is a delay of nearly four months in the Council making its decision. This was fault which caused Miss X and B injustice.
33. By this time, Miss X had removed B from school. Miss X kept B out of school after receiving the final EHC Plan and told us she does not plan to send B back to school in September.
34. The process from a request for an EHC assessment to the Council issuing a final Plan should take a maximum of 20 weeks. The Council should have issued B’s final Plan by mid-October 2023. It issued it in late May 2024 which was a delay of almost eight months. The Council apologised to Miss X for the delay in issuing B’s Plan. It said the delay was due to staffing issues. This is fault and caused Miss X injustice because it delayed her right to appeal.
35. The Council did not send Miss X a paper copy of the letter outlining her right of appeal. The letter explains how to ask the Council for a paper copy of the EHC Plan if a person is unable to access the Council’s website. However, if the person is unable to access the website, they will also be unable to also access the letter.
36. Fortunately, Miss X asked the Council about her right of appeal separately in an email and the Council responded. The lack of a paper copy letter caused a further delay to Miss X being informed of her right to appeal. However, any further injustice to Miss X is limited as the delay was less than two weeks because she found out about her appeal rights via other means.
37. The Council has recently told the Ombudsman about the actions it is taking to meet the increased demand of the EHC assessments and improve its SEND service in relation to other cases. Therefore, I am not making service improvement recommendations in this case.

Back to top

Agreed action

38. Within four weeks of my final decision the Council has agreed to:
1. Make a payment of £400 to Miss X to recognise the avoidable uncertainty and frustration caused by the four month delay in obtaining Educational Psychology advice. That equates to £100 per month of delay.
2. Make a payment of £400 to Miss X to reflect the uncertainty caused by the further four month delay issuing the final Education Health and Care Plan. That equates to £100 per month of delay.
39. In arriving at this figure, I considered our published guidance on remedies. I have also considered that Miss X removed B from school in February, before the final Education Health and Care Plan was issued. I have also taken into account the length of time and considerable delay it has caused to Miss X using her right to appeal to Tribunal. I consider this amount is proportionate and appropriate to the level of injustice caused.
40. Alongside this, within four weeks of my final decision the Council has agreed to provide a written apology for the avoidable uncertainty and frustration caused to Miss X and the delay to her right of appeal to Tribunal.
41. 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.
42. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

43. I have completed my investigation. I find the Council at fault and this caused injustice. The Council has agreed to apologise and make a payment to Miss X.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman