Summary: Mrs X complained about the Council’s failure to finalise her son’s Education, Health and Care Plan within statutory timescales. We found fault because the Council took too long to issue the plan. Mrs X has suffered avoidable distress and frustration and Y lost the opportunity to benefit from the services set out in the plan from the time it should have been issued to when it was. To remedy the injustice caused by these faults, the Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complains the Council did not issue her son, Y’s, Education, Health and Care plan (EHCP) within the required timescales. Mrs X complains Y was unable to receive a suitable education until his EHCP was issued at the end of June 2023.
2. Mrs X says this has caused distress and frustration for her and Y. She says that he has lost out on provision he should have received if the plan had been issued on time.

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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. 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)
5. 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

6. I have considered all the information Mrs X provided and discussed this complaint with her. We also requested information from the Council, and in turn I have considered its response.
7. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

8. A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this. Section F of the plan is about the special educational provision needed by the child or the young person.  
9. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Timescales and process for EHCP assessment

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 needs assessments and producing EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN 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 needs and developing EHCPs “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 EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply).

Appeal rights

11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.

What happened

12. Mrs X has a son, Y, who has a diagnosis of autism.
13. At the end of September 2022, Mrs X contacted the Council to ask for an EHC needs assessment (the assessment) to be done for Y.
14. Early in November 2022 and following contact with Y’s school, the Council agreed to do the assessment.
15. At the beginning of January 2023 and after finishing the assessment, the Council agreed to draft an EHCP for Y.
16. At the beginning of February 2023, Mrs X complained to the Council that she had not yet received Y’s draft EHCP. She was concerned the Council would breach statutory timescales as it was taking too long to complete the process leading to Y’s finalised EHCP.
17. The Council sent its stage one complaint response towards the end of February 2023. In this letter, it:
• said there had been an unavoidable 10-day delay at the beginning of the process whilst waiting for information from Y’s school;
• advised that including this delay, the 20-week deadline to issue Y’s final EHCP was the middle of February 2023;
• confirmed the EHCP was being drafted;
• apologised the process would take longer than statutory timescales; and
• apologised that she had not yet received Y’s draft EHCP and acknowledged the impact this would have on Y.
18. The Council also explained the delay was due to staffing and resource issues and a significant increase in the amount of EHCPs in the area. It said it was committed to resolving the issues as a matter of urgency.
19. The Council issued Y’s final EHCP at the end of June 2023.
20. Following further contact from Mrs X, at the end of July 2023, the Council wrote to her again. In this final response letter, the Council again apologised and repeated the reasoning from its earlier complaint response to explain why the final EHCP was delayed. The Council also advised it had completed a SEN service re-structure and hoped that this would improve timeliness and its ability to work within statutory timescales. The letter finished by apologising for the poor communication Mrs X had experienced from the SEN service.
21. Mrs X then brought her complaint to the Ombudsman after being signposted to us by the Council.

Analysis

22. The Code states that the process for the assessment must be carried out in a timely manner and steps must be completed as soon as practicable.
23. Y’s first final EHCP should have been issued by the 20-week deadline which was the middle of February 2023. The Council took too long to complete the process. Mrs X experienced a delay of nearly four and a half months to receive the finalised EHCP. This is fault. This significant delay would have caused Mrs X distress and frustration. It meant a delay in Mrs X having a right to appeal the plan at tribunal. It also meant that Y lost out on the opportunity to access the provision set out in the plan whilst he waited for it to be written and finalised. I have made a recommendation below to remedy this injustice.

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Agreed action

24. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mrs X for the delay in finalising Y’s EHCP, the delayed appeal rights and the lost opportunity for Y to access the educational provision set out in his EHCP;
• pay Mrs X £250 to acknowledge the distress and frustration caused by the wait for the EHCP to be issued;
• pay Mrs X £900 to acknowledge Y’s lost opportunity to access specialist educational provision set out in his plan, whilst it was delayed.
25. The suggested payments are in line with the Ombudsman’s guidance on remedies.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman