Summary: Miss X complained about the Council’s delays with completing her child’s (Y) Education, Health and Care needs assessment and delays with issuing his final Plan. Miss X also complained about the contents of Y’s final Plan. There were some faults by the Council which caused injustice to Miss X. The Council has agreed to take action to remedy the injustice caused.

The complaint

1. Miss X complained about the:
1. Council’s delays with completing her child’s (Y) Education, Health and Care (EHC) needs assessment
2. Council’s delays with issuing Y’s final EHC Plan
3. contents in Y’s final EHC Plan.
2. Miss X said the matter caused her significant distress and that Y struggled at his nursery school, and he lost out on specialist provision during the period of delay.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 Tribunal in this decision statement.
6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
7. 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.
8. 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)
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 a copy of the final report with Ofsted.

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What I have and have not investigated

10. I have investigated matters from August 2023 to September 2024. This covers the period from when Miss X requested an Education, Health and Care needs assessment for Y to when she made a complaint to the Ombudsman.
11. I have not investigated Miss X’s complaint at point ‘c’ about the contents of Y’s EHC Plan. This was a matter for the Tribunal.

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How I considered this complaint

12. I have discussed the complaint with Miss X. I have also considered the information Miss X and the Council provided about this complaint.
13. I sent Miss X and the Council a copy of a draft decision. I considered comments received before reaching a final decision.

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What I found

Early Years Setting

14. This includes settings such as nurseries, pre-schools and childminders.
15. Most children and young people will have their needs met at ‘Special educational needs (SEN) Support’ level within early years settings, schools or colleges without any need for involvement from the council. The Ombudsman does not have jurisdiction to look at complaints about ‘SEN support’ within settings.
16. Children with more complex needs might need an Education, Health and Care Plan.

Education, Health and Care Plans

17. 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.
18. Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment. 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.
19. 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).
20. The Ombudsman expects councils to follow statutory timescales set out in the law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
21. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal when the final plan is issued.

Council’s Complaint Procedure

22. The Council has a two-stage complaint procedure.
23. At the stage one process, a response should be provided within 20 working days. If a complainant is dissatisfied with the stage one response, they should inform the Council within 20 working days and ask for their complaint to be escalated.

Key events

24. Y attends a nursery school, and he has some special educational needs (SEN).
25. On 2 August 2023, Miss X asked the Council to assess Y for an Education, Health and Care (EHC) Plan. The Council agreed to assess Y.
26. In February 2024, Miss X formally complained to the Council about its delays with completing Y’s EHC needs assessments and its delays with issuing his final EHC Plan. Miss X said she had previously raised her concerns with Y’s caseworker who explained the delay was due to the shortage of educational psychologists (EPs). Miss X said the reason given by the caseworker was incorrect and it was not applicable to Y because he had already been assessed by an EP.
27. Miss X was not able to provide the date an EP assessed Y prior to February 2024.
28. In its stage 1 response, the Council:

• maintained its delays were due to the national shortage of EPs
• apologised and acknowledged Miss X’s frustration but said it was still not able to proceed with Y’s EHC needs assessment process until it received advice from an EP
• said it had increased the number of EP posts within its borough, and it said Y was being prioritised
• pointed out there were funding streams available to Y’s nursery school to support his needs pending when his EHC needs assessment and Plan would be completed. The Council provided Miss X with the contact details of the allocated worker to discuss the available funding streams.
• said if Miss X was dissatisfied with its response, she could ask the Council to escalate her complaint within 20 working days of its response letter.

29. The Council sought some professional advice for Y’s EHC needs assessment. This included an EP report which the Council received in April 2024.
30. On 19 June 2024, the Council issued Y’s final EHC Plan.
31. Miss X was not happy with the contents of Y’s EHC Plan, and she exercised her appeal rights to the Tribunal.
32. Miss X remained dissatisfied with the Council’s delays in completing Y’s EHC Plan process, and she complained to the Ombudsman.

Analysis

Delays with EHC Plan Process

33. Statutory guidance states councils must issue the final EHC Plan no longer than 20 weeks from the needs assessment request date. In this case, the Council took a total of 46 weeks (August 2023 to June 2024) to issue Y’s final EHC Plan which meant there was a delay of approximately 26 weeks.
34. The Council said the delay was caused by the national shortage of EPs and I accept, on balance, the shortage of EPs will have contributed to the delay in Y’s case. This amounts to service failure and it was fault. The Council accepted its failings.
35. The Council’s delays caused Mrs X distress, uncertainty, frustration and it delayed her right of appeal to the Tribunal about the content of Y’s final EHC Plan. This will be addressed in the ‘agreed action’ section below.
36. As the delay was due to the lack of EPs, I find the Council was unable to progress the EHC needs assessment process without EP advice. Therefore, we cannot remedy any loss of special education support to Y during the delay period. This is because Y did not yet have an EHC Plan setting out his SEN and the provisions needed to meet them. We cannot say Y’s EHC needs assessment would have reached the same conclusions had it taken place within the statutory timescale. Also, we would expect the provisions in Y’s June 2024 final EHC Plan to have reflected his needs and taken into account any impact on his SEN provisions during the delay period.
37. I have not made any service improvement recommendations in this case. This is because the Council already has an action plan in place to address its delays with completing EHC needs assessments, its delays with issuing final EHC Plans and to increase the number of EPs in its borough. We are continuing to monitor the actions the Council takes to ensure compliance and improvement.

Complaint Handling

38. I note in its stage 1 response to Miss X’s complaint, the Council set out its escalation route if Miss X remained dissatisfied with its response and should she wish to progress her complaint. There was no evidence to show Miss X asked for her complaint to be escalated to stage 2 of the Council’s complaint process. Therefore, I find no fault by the Council for its complaint handling.

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Agreed action

39. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Miss X to acknowledge the injustice caused to her by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology
• make a symbolic payment of £600 to Miss X to acknowledge the distress, uncertainty, frustration and her delayed right of appeal caused by the Council’s delays in completing Y’s Education, Health and Care needs assessment and with issuing his final Plan. The symbolic payment is calculated at £100 per month from January 2024 to June 2024 (the delay period) in line with our guidance on remedies.

40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. There was fault by the Council leading to injustice and it has agreed to remedy the injustice caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman