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 4 week delay in obtaining Educational Psychologist advice. It then further delayed issuing Y’s final EHC Plan by 22 weeks after it received the EP advice. The Council agreed to make payments to Miss X to acknowledge the frustration, uncertainty and delayed appeal rights caused by the delays.

The complaint

1. Miss X complained the Council delayed completing her child, Y’s Education, Health and Care (EHC) needs assessment which caused a subsequent delay in issuing the final EHC Plan.
2. Miss X says this caused her distress, uncertainty and delayed her right of appeal to the SEND tribunal.

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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 evidence and information provided by Miss X and the Council as well as relevant law, policy and guidance.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

9. 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.
10. 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.

11. 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.
12. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
13. 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)
14. 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.

What happened

15. Miss X has a child, Y who in 2023 was of pre school age. Y was due to start in reception in September 2024. Y has special educational needs and so in October 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 February 2024. That being the case the Council should then have issued Y’s final EHC Plan by 4 March 2024.
16. As part of the EHC needs assessment the Council requested advice from an Educational Psychologist (EP) in November 2023. The EP provided advice at the start of February 2024 which was a delay of 4 weeks. The Council sent its decision to issue Y with an EHC Plan a couple of weeks later.
17. The Council issued Y’s draft EHC Plan in June 2024
18. Miss X complained to the Council in July 2024 unhappy that it planned to name a mainstream school in Y’s final EHC Plan. Miss X made it clear she wanted the Council to issue the final EHC Plan so she could appeal to the SEND tribunal as soon as possible.
19. The Council issued Y’s final EHC Plan on 3 September 2024 naming a School 1, a mainstream primary school in section I.
20. Miss X remained unhappy and complained to us. She complained about delays in the EHC needs assessment process and about the Council’s decision to name a mainstream school which she said cannot meet Y’s needs. I have not seen a formal complaint from Miss X to the Council about the delays.
21. Following receipt Y’s final EHC Plan Miss X appealed to the SEND tribunal about the named placement in section I. Records show Y has remained out of school, not attending School 1.

My findings

22. 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.
23. Following Miss X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by 5 February 2024 and then subsequently issued the final Plan by 4 March 2024.
24. The EP report should have been available to the Council by early January 2024 in order for it to have met the timescales. The EP report was not complete until early February 2024 which was a delay of 4 weeks and fault. It caused a short 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.
25. However, the delay in obtaining EP advice was not the main 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 start of April 2024. It did not do so until 3 September 2024 which is a further delay of 22 weeks which is fault.
26. In total the Council took 46 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.
27. The delays caused Miss X frustration and uncertainty and delayed her right of appeal to the SEND tribunal which she used shortly after receiving the final EHC Plan.
28. 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

29. Within one month of the final decision the Council agreed to take the following action:
1. Pay Miss 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 Miss X £300 to acknowledge the frustration, uncertainty and delayed appeal rights caused by the 22 week delay in issuing Y’s final EHC Plan after it had obtained EP advice during the EHC needs assessment process.
30. The Council should provide us with evidence it has complied with the above actions.

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Decision

31. I find fault causing injustice. The Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman