Summary: Ms X complains the Council failed to finalise her child’s education, health and care plan within statutory timeframes. This is fault and the delay resulted in Ms X’s child receiving the provision to meet her needs eight months later than she should have. The Council has agreed to remedy this injustice by apologising to Ms X and making a payment to her to acknowledge the loss of provision and the avoidable distress caused by the fault.

The complaint

1. The complainant, Ms X, complains the Council failed to finalise her child’s education, health and care plan within statutory timeframes.

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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 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)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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 Ms X’s complaint and the information she provided.
8. I considered the information I received from the Council in response to my enquiries.
9. Ms X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making this final decision.

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What I found

Relevant law and guidance

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 SEND 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 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.
• 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).  

What happened

12. In July 2023, the Council received a request for the assessment of Ms X’s child, Y’s, education, health and care (EHC) needs.
13. The Council agreed to assess Y’s needs in September 2023.
14. In January 2024 Ms X complained to the Council because it had not finalised Y’s EHC Plan.
15. The Council responded to Ms X’s complaint in February 2024 and apologised for the delay in responding to her concerns. It said it was still awaiting completion of the Educational Psychology (EP) advice and information. The Council upheld Ms X’s complaint and apologised for the delay.
16. Ms X was unhappy with the Council’s response and requested a timescale for when Y’s EHC Plan would be agreed and finalised.
17. The Council said an EP would be allocated by 26 April 2024 and it was working to meet the increased demand for EPs in its area. The Council said that if Y’s EHC Plan was agreed and issued, it would compare the provision specified with the provision Y has in place from when the EHC Plan should have been issued. If it identified any gaps in provision from the date by which the EHC Plan should have been issued, the Council would then consider a suitable remedy to ensure Y has not been disadvantaged by the delay.
18. In July 2024, the Council issued Y’s final EHC Plan.

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Analysis

19. The Council delayed issuing Y’s EHC Plan by eight months. This is fault. The delay resulted in Y receiving the provision to meet her needs eight months later than she should have. It also delayed Ms X’s right of appeal.
20. In its Stage 2 response to Ms X’s complaint, the Council said it would identify any gaps in provision once the EHC Plan was finalised and remedy any loss of provision. I asked the Council if it had completed this review and remedied any gap in provision like it said it would. The Council had not. This is a further injustice to Ms X because it raised her expectations. It is also an injustice to Y because the loss of provision remains.
21. I have made recommendations to remedy the injustice caused to Ms X and to Y.
22. I have not recommended any service improvements because the Council has demonstrated an improvement in the number of cases progressed by its EPs towards the end of 2024.

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Agreed action

23. To remedy the injustice caused by the faults identified above, the Council has agreed that, within four weeks of this final decision, it will:
• Apologise to Ms X in writing for the identified faults
• Pay Ms X £1800 for the loss of provision. I recommend Ms X uses this payment for Y’s benefit;
• Pay Ms X £300 for the avoidable distress caused.
24. The Council should provide us with evidence it has complied with the above actions.

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Final decision

The Council is at fault, and it has agreed to remedy the injustice caused to Ms X and to Y. Therefore, we have completed our investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman