Summary: Mrs B complains about the Council’s delays in carrying out an Education, Health and Care needs assessment for her daughter and issuing the final Education, Health and Care Plan (EHC Plan). There was fault by the Council. It did not meet statutory timescales during the EHC Plan process. Because of this, Mrs B suffered distress and she spent time and trouble chasing the Council for updates. The Council’s failure to meet statutory timescales also delayed her appeal right to the Tribunal. The Council will make a symbolic payment to Mrs B, apologise to Mrs B and her daughter and issue a staff briefing.

The complaint

1. Mrs B complains about the Council’s delays in carrying out an EHC needs assessment for her daughter, who I will refer to as C, and issuing the final EHC Plan.
2. Mrs B says as a result of the Council’s failings, she is distressed and has spent time and trouble chasing the Council for updates.

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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 any fault which has caused an injustice, 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. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

9. I have investigated matters in this case from April 2023 to July 2024.
10. I have not investigated any reference to the contents of C’s final EHC Plan. This is because Mrs B has a right of appeal to the SEND Tribunal about the contents of the Plan.

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How I considered this complaint

11. I read Mrs B’s complaint and spoke to her about it on the phone.
12. I considered information provided by Mrs B and the Council.
13. Mrs B and the Council have had an opportunity to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

14. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or young person.
• Section I: The name and type of school.

EHC needs assessments

15. Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (the Code) sets out the process for carrying out EHC needs assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• where a Council receives a request for an EHC needs assessment it must decide whether to agree to the assessment within six weeks;
• if a Council decides to carry out an assessment, it should do so in a ‘timely manner’;
• if the Council decides to issue an EHC Plan after an assessment, it should prepare a draft EHC Plan. The Council should send the draft EHC Plan to the child’s parent or the young person and given them at least 15 days to comment; and
• the whole process should take no more than 20 weeks from the point the Council received the assessment request to the date it issues the final EHC Plan.
16. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes the child’s educational placement and psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice.
17. There is a right of appeal to the SEND Tribunal about the educational provision and placement named in a child’s EHC Plan. This appeal right only takes effect once the final EHC Plan has been issued.

What happened

18. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
19. In late March 2023, Mrs B requested an EHC needs assessment for her daughter, C.
20. In mid-May 2023, the Council sent its decision to Mrs B. It decided not to carry out an EHC needs assessment for C. Mrs B did not appeal this decision to the SEND Tribunal.
21. A mediation meeting was later held on 30 June 2023, where the Council agreed it would carry out an EHC needs assessment for C. The Council contacted professionals on the same day, to request their assessment reports by 18 August 2023.
22. On 10 September 2023, Mrs B raised a complaint with the Council about the delays in the EHC needs assessment process.
23. On 29 September 2023, the Council sent its stage one complaint response to Mrs B. It told her:
• It was at the stage of the process where C needed to be assessed by an EP, but there is a delay in this part of the service. It explained this is a national issue due to an unprecedented increase in EHC needs assessment requests.
• It was working to keep parents updated and it would contact her at least every four weeks with an update; and
• It apologised for any impact the delays had had so far.
24. On 25 October 2023, the EP assessment commenced.
25. On 19 January 2024, the EP report was completed.
26. On 9 February 2023, Mrs B escalated her complaint with the Council to stage two. She told it:
• There had been further delays in the EP assessment due to the assigned EP falling sick, and another EP having to complete the report.
• C was in year six and considered a priority due to being in a transitional year, yet she still did not know whether an EHC Plan would be granted.
27. On 14 March 2024, the Council issued the draft EHC Plan.
28. On 5 April 2024, the Council sent its stage two response to Mrs B. It told her:
• It apologised for the delay in responding to the complaint.
• It had now issued the draft EHC Plan, and it hoped to have finalised the Plan by the end of April.
29. The Council sent Mrs B the final EHC Plan in early July 2024.

Analysis

30. The Council has acknowledged, and it is clear from the documentation, there have been significant delays in this case. The Council did not write to Mrs B with its decision following her request for an EHC needs assessment within the statutory timescales. Mrs B’s request was made in late March 2023. The Council decided it would not assess C in mid-May 2023, one week after the deadline. It then later agreed it would assess C on 30 June 2023. This is the key date for calculating the subsequent delay. Mrs B received the final EHC Plan early July 2024. It should have been issued mid-November 2023. This is a delay of approximately eight months and is not in line with the 20-week statutory timescale for completing an EHC needs assessment and issuing a final EHC Plan. This was fault.
31. The eight month wait delayed Mrs B’s right of appeal to the Tribunal until it issued the final EHC Plan in July 2024. She had no means to challenge the content or placement named in the Plan if she was unhappy with either until the final version was issued. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timescales here is fault by the Council and has caused Mrs B distress.
32. In response to Mrs B’s complaint, the Council accepted it delayed the EHC needs assessment process and explained this was because of the lack of available EPs. The Ombudsman makes findings of fault where a Council fails to provide a service, regardless of the reasons for the service failure. So, while I recognise the reasons for the delay, this is fault.
33. During the EHC needs assessment process, the Council told Mrs B it would contact her at least every four weeks with an update. Mrs B told us the Council did not do this. This was fault. As a result, Mrs B spent avoidable time and trouble chasing the Council for updates.
34. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
35. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
36. The Council offered a symbolic payment of £900 to Mrs B. This was to acknowledge the impact of the delay caused by the EP issues. I am satisfied that in the circumstances of this complaint, £900 is an appropriate amount to remedy the impact of the delay caused by the EP issues. This is because the remedy has been calculated at roughly £100 per month from the date the Council should have issued the final EHC Plan in mid-November 2023 until it issued the draft plan in early July 2024. This is in line with the Ombudsman’s guidance on remedies.
37. The Council also offered Mrs B an additional symbolic payment of £500 to acknowledge the distress caused to Mrs B and the time and trouble she spent chasing the Council for updates. I consider this to be a suitable amount to acknowledge the impact of the poor communication which is in line with our guidance on remedies.
38. I have made one service improvement below. We are already monitoring the Council’s progress on EHC assessment processes following recommendations from other cases where we have found similar fault. In this case, the Council agreed to send us the findings of an external review into its EHC assessment processes. It has agreed to produce and share an action plan after considering the review’s findings. This will set out what the Council will do to improve its service. The Council has also recently produced a report to highlight the actions it is taking and will take, to improve assessment times. I therefore have not made any further service improvement recommendations.

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Agreed actions

39. To remedy the outstanding injustice caused to Mrs B by the fault I have identified, the Council will apologise to Mrs B and C for the delays in the EHC needs assessment process, the Council’s issuing of the final EHC Plan and the lack of communication. This apology should be in accordance with the Ombudsman’s guidance Making an effective apology, and will be made within four weeks of my final decision.
40. Within three months, the Council will also issue a staff briefing to remind relevant staff of the importance of following statutory timescales when completing EHC needs assessments, issuing final EHC Plans, and good communication.
41. The Council will provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation and uphold Mrs B’s complaint. There was fault by the Council which caused injustice to Mrs B. The action it has agreed to take is sufficient to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman