Summary: Mrs X complained the Council delayed completing her child, Y’s Education, Health and Care (EHC) needs assessment in line with statutory timescales. The Council was at fault. It delayed deciding whether to issue Y with an EHC Plan within the statutory timescales, caused by a delay in obtaining Educational Psychologist (EP) advice. It then further delayed issuing Y’s final EHC Plan by 20 weeks after it received the EP advice. The Council agreed to make payments to Mrs X to acknowledge the injustice the delays caused.

The complaint

1. Mrs X complained the Council delayed completing her child, Y’s Education, Health and Care (EHC) needs assessment which caused a further delay in issuing the final EHC Plan.
2. Mrs X said this has caused distress and uncertainty and disrupted Y’s transition into a school environment.

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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. 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. 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

7. I considered Mrs X’s complaint and information she provided.
8. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website.
9. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

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 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.

12. 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.
13. 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.

What happened

14. Mrs X has a chid, Y who in 2023 was of pre-school age and due to start school in reception in September 2024. Y has special educational needs, and so Mrs X asked the Council to carry out an EHC needs assessment for Y in November 2023 which it agreed to do.
15. In line with statutory timescales this meant the Council should have decided whether to issue Y with an EHC Plan by late February 2024. That being the case the Council should then have issued Y’s final EHC Plan by 21 March 2024.
16. As part of the EHC needs assessment the Council requested advice from an Educational Psychologist (EP) in December 2023.
17. Mrs X complained to the Council in January 2024 that it had missed the six week window to obtain the EP advice and therefore she was concerned the Council would now fail to meet the 20 week timeframe to issue Y’s EHC Plan. She also complained the EHC needs assessment was not adequate as the Council had not sought Occupational Therapy (OT) advice or consulted with CAMHS (Child and Adolescent Mental Health Services)
18. The EP provided advice in February 2024 which was a delay of around 5 weeks. The Council issued its decision to issue Y with an EHC Plan on 8 March 2024.
19. Mrs X made a further complaint at the start of April 2024. She said the 20 week deadline had past and she had not received a draft EHC Plan. Mrs X said it was vital Y had a plan in place to ensure a smooth transition into a school environment. She reiterated that the Council should seek OT advice and consult with a mental health professional as part of the needs assessment.
20. The Council issued Mrs X with a final complaint response in April 2024. It apologised for the delays in completing Y’s EHC needs assessment which it blamed on an unprecedented demand for assessments and its EP service over the last 18 months. It said staffing challenges had caused a further dela in it completing Y’s draft plan.
21. Mrs X remained unhappy and complained to us.
22. Since complaining to us the Council issued Y’s draft Plan in July 2024. It issued Y’s final EHC Plan on 29 August 2024. This was 29 weeks outside the statutory timescales.
23. Y started reception at a mainstream primary school in September 2024. Mrs X said however that due to the lateness of the plan, funding was not in place when Y began which meant the school has struggled to meet Y’s needs.

My findings

24. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
25. Following Mrs X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by late February 2024 and then subsequently issued the final Plan by 21 March 2024.
26. The EP report should have been available to the Council by mid-January 2024 in order for it to have met the March deadline. The EP report was not complete until the end of February 2024 which was a delay of around five 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.
27. However, the delay in obtaining EP advice was not the only reason for the delay in issuing Y’s final EHC Plan. With EP advice in hand the Council should have issued Y’s final Plan by mid-April 2024. It did not do so until 29 August 2024 which is a further delay of 20 weeks which is fault.
28. In total the Council took 43 weeks to assess Y and issue their final EHC Plan instead of the 20 weeks statutory timescales due to the delay in obtaining EP advice and because of backlogs and staffing issues in its SEND service.
29. The delay issuing Y’s final EHC Plan caused Mrs X distress, frustration and uncertainty. It was open for Mrs X to appeal to the SEND tribunal if she disagreed with any of the content of the EHC Plan, such as any lack of OT provision. If Mrs X has any concerns or issues about how the Council has met Y’s provision since September 2024 it is open for her to make a new complaint about this to the Council.
30. The Council has explained following similar cases investigated by the Ombudsman the action it is taking to meet the demands in its SEND service and to reduce the backlog in the EHC needs assessment process. This includes ongoing recruitment of EPs and SEN case officers. I have not recommended any further service improvements in respect of this.

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Agreed action

31. Within one month of the final decision the Council agreed to take the following action:
1. Pay Mrs X £100 to acknowledge the distress, frustration and uncertainty caused to her 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 Mrs X £400 to acknowledge the distress and uncertainty caused to her by the delay in issuing Y’s final EHC Plan after it had obtained EP advice.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. 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