Summary: Miss 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 9 week delay in obtaining Educational Psychologist advice. It then further delayed issuing Y’s final EHC Plan by 25 weeks after it received the EP advice. This caused Miss X distress and delayed Y’s access to the specialist provision and placement specified in the final Plan by around a term. The Council agreed to make payments to Miss X to acknowledge this injustice.

The complaint

1. Miss X complained the Council delayed completing her child Y’s EHC needs assessment. This caused a significant delay in issuing the final EHC Plan.
2. Miss X says the matter has caused her distress and uncertainty and the delayed Y’s access to an EHC Plan and the specialist provision within it.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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).
7. 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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What I have and have not investigated

How I considered this complaint

8. I considered Miss X’s complaint and information she provided.
9. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website.
10. Miss X and the Council had the 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

11. 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.
12. 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.

13. 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.

What happened

14. Miss X has a child, Y who in November 2023 was of secondary school age and attended a mainstream school. Y began struggling to attend school at the start of the 2023/24 academic year and then began having alternative provision. Records show Y had anxiety and has been referred to an autism assessment.
15. In mid-November 2023 Miss X asked the Council to carry out an EHC needs assessment for Y which it agreed to do. In line with statutory timescales this meant the Council should have decided whether to issue Y with an EHC Plan by the start of March 2024. That being the case the Council should then have issued Y’s final EHC Plan by 3 April 2024.
16. As part of the EHC needs assessment the Council requested advice from an Educational Psychologist (EP) in December 2023. The EP provided advice at the start of April 2024 which was a delay of 9 weeks. The Council sent its decision to issue Y with an EHC Plan a couple of weeks later.
17. Miss X complained to the Council in May 2024 about the delays in completing the EHC needs assessment and issuing Y’s EHC Plan. The Council responded in June 2024 and apologised for the delays which it blamed on an unprecedented number of requests for needs assessments over the last 18 months. In addition it said there was a national shortage of Educational Psychologists (EPs) to meet the increased demand.
18. The Council issued Y’s draft EHC Plan in June 2024. It issued Y’s final EHC Plan on 21 November 2024 naming a special school as Y’s placement.
19. Miss X remained unhappy and complained to us.

My findings

20. 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.
21. Following Miss X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by 6 March 2024 and then subsequently issued the final Plan by 3 April 2024.
22. The EP report should have been available to the Council by the end of January 2024 in order for it to have met the April deadline. The EP report was not complete until the start of April 2024 which was a delay of 9 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.
23. 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 the end of May 2024. It did not do so until 21 November 2024 which is a further delay of 25 weeks which is fault.
24. In total the Council took 53 weeks to assess Y and issue the 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.
25. The faults above have caused Miss X distress and uncertainty and delayed Y’s access to an EHC Plan and the specialist placement and provision. On balance, had the Council not delayed following receipt of the EP advice it is likely Y could have had access to the specialist provision by June 2024 and the placement for the start of the 2024/25 academic year. This equates to just over a term of lost provision.
26. 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. We continue to monitor the Council’s ongoing work to reduce the backlog through our casework.

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Agreed action

27. Within one month of the final decision the Council agreed to take the following action:
1. Pay Miss X £200 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 Miss X £1750 to recognise Y’s loss of specialist provision in the EHC Plan between June and November 2024, caused by the 25 week delay in issuing Y’s final EHC Plan after it had obtained EP advice during the EHC needs assessment process.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. 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