Summary: Ms X complained about the significant delays in the education, health and care plan process. She also said the Council’s communication has been poor. We find the Council was at fault. This caused significant distress to Ms X and her son. To address this injustice caused by fault, we make several recommendations.

The complaint

1. The complainant, Ms X, complains about the significant delays in the education, health and care plan process. She said because of this her son missed out on education. Ms X also said the Council’s communication has been poor.

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The Ombudsman’s role and powers

2. 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)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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.
6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
8. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
9. 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.
10. 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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What I have and have not investigated

11. I have investigated whether there was any fault by the Council between October 2022 and November 2023 and between May and August 2024.
12. I have not investigated the Council’s decision to name a mainstream setting or any lack of education between November 2023 and May 2024. This is because Ms X appealed the named school. As stated in paragraphs 6, 7 and 8, this is outside our jurisdiction.

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How I considered this complaint

13. I spoke with Ms X about her complaint. I considered all the information provided by Ms X and the Council.
14. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plan

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. 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. 

Timescales and process for EHC assessment

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;
• 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; and
• 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).

Compulsory school age

17. Reception starting age is when a child is four years old from the 1 September. But children born from 1 April to 31 August do not need to start school until the September after their fifth birthday. This is when summer born children reach compulsory school age.
18. If a child has an EHC Plan and parents wish for them to start in reception when they are five, they should discuss this with the Council. The Council is responsible for making the decision on which year group a child should be admitted to. The school admission code states this decision should be made on the basis of the circumstances of the case and in the best interests of the child concerned.

Summary of the key events

19. Ms X requested a needs assessment for her son, Y, which was received by the Council on the 25 October 2022.
20. On the 9 December 2022, the Council told Ms X it would carry out a needs assessment.
21. In January and March 2023, Ms X asked the Council for an update. But the Council said there was a delay with arranging an educational psychologist (EP) assessment.
22. The Council called Ms X in May 2023 as she was upset as her emails and calls had not been responded to. The Council said the assessment team would contact her as soon as possible.
23. Following Ms X’s complaint to the Council in the following month, the Council apologised and said:
• there was a national shortage of EP’s and it apologised for the delay;
• it had recently recruited additional admin officers and SEND officers. It said Y’s case was scheduled to be reviewed by its panel next week; and
• it acknowledged the delays in communication was not acceptable. It said it was currently developing a more efficient process to improve its level of effective communication.
24. Ms X asked for her complaint to be escalated. She said she had previously been told in May 2023 that Y would be discussed at panel, and she should hear back soon. She said Y would not be able to attend school this September without an EHC Plan. She said she would not send him to a mainstream setting with no support.
25. The Council issued the draft EHC Plan in July 2023 and Ms X asked for a phone call to discuss her comments.
26. The Council issued its final complaints response the following month. It said:
• it agreed to undertake an assessment on the 9 December 2022,
• advice from the EP was due back on the 13 January 2023, but it was not received until the 4 April 2023;
• the case was discussed on the 3 July 2023 and the decision was made to issue a draft EHC Plan which was issued on the 13 July 2023; and
• it reiterated its previous apology.
27. Ms X’s MP contacted the Council in September 2023 and asked it reconsider Y for a specialist placement.
28. After speaking with Ms X in October 2023, the Council issued a further draft EHC Plan. It also consulted with schools.
29. In November 2023 it was noted that Ms X’s preferred school could not offer a place. But Ms X said this was not the case. She said the school had stated they could meet Y’s needs.
30. The Council decided Y’s needs could be met in a mainstream setting with additional funding. Ms X raised concerns with this as the school had said it could not meet Y’s needs.
31. The Council remained of the view they could. It finalised Y’s EHC Plan on the 17 November 2023, naming the mainstream setting from September 2024. But it was noted that due to Y’s age, Ms X had the right to defer his school start until he was of statutory school age which she used. Therefore, the plan named a pre-school provision of parental choice.
32. The final EHC Plan also stated:
• Y would have adult support to prompt him in the activities he is engaging with;
• Y would be taught main lesson input in small group/quiet environment where possible;
• the environment will be adapted with visual support/signs/symbols that are used consistently across the school/home setting;
• the Council had assessed that in nursery, Y’s needs could be met with 18 hours of attendance; and
• Y will have a daily sensory activity that meets his sensory needs and helps to prepare him for learning.
33. Ms X appealed the content of the plan to the Tribunal. This included the named school.
34. In May 2024, a consent order was issued which stated a specialist school would be named in Y’s EHC Plan.

Analysis- was there fault by the Council causing injustice?

35. The Council received Ms X’s request for a needs assessment on the 25 October 2022. The Council agreed to assess on the 9 December 2022 and a draft plan was issued on the 13 July 2023. The final plan being issued on the 17 November 2023.
36. There is service failure due to the Council’s inability to commission an EP within the statutory timescales. The LGSCO is aware of the problems arising from a national shortage of EPs, which in turn has created a significant delay in the completion of Y’s EHC Plan, including the delay in consulting schools.
37. As there is fault in this case, we have to consider the injustice caused to Ms X and Y and provide a remedy. The EHC Plan should have been finalised within 20 weeks of the request which would have been the 14 March 2023. Therefore, there was a significant delay in Y receiving the EHC Plan. The delay also frustrated Ms X’s right of appeal.
38. Because of the delays in obtaining an EP assessment, we can assume the EP report and final EHC Plan reflect Y’s needs now. But we cannot guess what provision would have been had the plan been issued within timescales. Therefore, we recommend a payment of £100 per month from 20 weeks up until the final plan is issued in recognition of the impact of the delay in finalising the plan.
39. We have previously acknowledged the proactive steps the Council is taking to try and resolve the lack of EP’s in case 23003684. It has:
• recruited locum Educational Psychologists and engaged with agencies who could offer access to locum Educational Psychologist via their services; 
• remodelled the SEND assessment service which took effect on 20 February 2023, creating a dedicated tribunal team and additional business support. It said the remodel is in preparation for a full-service redesign which is at the advanced planning stage;
• recruited additional plan writers; and
• moved additional business support assistants to the assessment team when it identified issues with business support capacity.
40. Ms X has complained about the Council’s poor communication. From the evidence seen Ms X did often chase the Council for updates. There was also a phone call in May 2023 where Ms X was upset as the Council had not responded to her emails and calls. In the Council’s complaints response, it has acknowledged the delays in communication and said it was not acceptable. It said it was developing a more efficient process to improve its level of effective communication. I acknowledge the steps the Council has taken. But this did cause significant distress to Ms X.
41. Ms X said Y missed out on education between September 2023 and July 2024. As stated in paragraphs 6, 7 and 8, I can only consider up until November 2023 and after May 2024 when the consent order was issued. In 2023, Ms X requested Y’s start in reception be deferred to September 2024 when he would have been five. This was because the plan had not been finalised and Ms X did not want him attending a mainstream setting without the support of an EHC Plan. She also said he needed a specialist placement.
42. The Council agreed it was appropriate for Y to remain at his current nursery setting. The Council also said it provided the nursery with early years funding to ensure Y’s needs could be met.
43. Whilst I acknowledge the reasons why Ms X deferred Y’s start as stated in paragraph 41, Y received an education in the setting that Ms X requested during the interim period. This consisted of 18 hours which is in line with the EHC Plan.

Agreed action

44. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Ms X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Ms X £800 for the educational benefit of Y. This is in recognition of the impact of the delay in finalising the EHC Plan; and
• pay Ms X £300 for the avoidable distress caused by the Council’s actions.
45. Within two months the Council should provide us with evidence of the steps it has taken to improve its communication.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. There was fault by the Council. The actions the Council has agreed to remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman