The Ombudsman's final decision
Summary: Mr X complained the Council failed to produce a Final Education Health and Care Plan for his child in the statutory timescales. We found fault with the Council for delaying production of Mr X’s child’s Education Health and Care Plan for seven months outside the statutory timescales. The Council agreed to apologise to Mr X and pay him £700 to acknowledge the avoidable distress, frustration and uncertainty caused.
The complaint
Mr X complained the Council failed to produce a Final Education Health and Care Plan for his child in the statutory timescales.
Mr X also complained the Final Education Health and Care Plan produced for his child does not meet their needs.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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) 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 this decision with Ofsted.
What I have and have not investigated I have investigated Mr X’s complaint about the delays in production of his child’s Education Health and Care Plan.
I have not investigated Mr X’s complaint about the content of the Education Health and Care Plan. This is because the content of an Education Health and Care Plan is appealable to the SEND Tribunal.
Mr X gained an appeal right to the SEND tribunal on 15 November 2023 when the Council produced the Final Education Health and Care Plan. The Ombudsman cannot displace the position of the Tribunal when it is reasonable to expect Mr X to exercise his right to appeal.
How I considered this complaint
I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Both Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.
What I found
EHC Plans rules and regulations A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
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.
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); Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.
What happened On 23 November 2022, Mr X asked the Council to complete an EHC Needs Assessment of his child, who I shall refer to as Y. The Council acknowledged this request the following day.
Mr X chased the Council for a decision about the EHC Needs Assessment application on 27 February 2023.
On 20 March 2023, the Council agreed to carry out an EHC Needs Assessment for Y and confirmed this with Mr X. The Council said it would complete the EHC Needs Assessment by 26 January 2023 and sought advice from the relevant professionals including an Educational Psychologist.
Mr X queried this deadline as this was in the past and asked why the Council failed to meet the six-week timescale in deciding to complete the assessment. The Council apologised for including the date of 26 January 2023 as this was the original deadline from the application dated of 23 November 2022. The Council said it aimed to provide an EHC Plan by 15 May 2023 given its delays so far.
The Educational Psychologist provided a report to the Council on 24 July 2023.
On 11 August 2023, Mr X contacted the Council to advise the deadline for producing the Final EHC Plan had passed. The Council responded to apologise for the delay and advise it could not give a timescale for production of the EHC Plan.
Mr X chased the Council again on 7 September 2023 and raised a formal complaint with the Council.
On 18 September 2023, the Council acknowledged Mr X’s complaint and promised a response by 13 October 2023. The Council did not provide a complaint response so Mr X chased the Council on 14 October 2023.
The Council issued the Draft EHC Plan for Y on 21 September 2023 followed by a further draft on 24 October 2023.
On 15 November 2023, the Council produced the Final EHC Plan for Y. The Council told Mr X about the appeal rights available to the SEND Tribunal about the content of the EHC Plan.
The Council issued a Stage 1 complaint response to Mr X on 23 November 2023. The Council apologised for the delay in responding to Mr X’s complaint. The Council agreed it had not produced Y’s Education Health and Care Plan in the statutory timescales and apologised for this.
Mr X sought consideration of his complaint at Stage 2 of the Council’s complaints procedure on 23 November 2023. Mr X said the Council’s response did not resolve his complaint.
On 21 December 2023, the Council issued the Stage 2 complaint response for Mr X’s complaint. The Council said: It apologised for not providing a robust response at Stage 1 of its complaints process.
It had delayed production of the EHC Plan for Y because the Educational Psychologist advice was provided late and because of delays in reviewing this advice before producing the draft EHC Plan for Y.
It apologised for the delayed production of the EHC Plan for Y but did not consider it suitable to offer a financial remedy.
It had already taken steps to try to improve the timeliness of the production of EHC Plans by restructuring its SEND department and introducing new systems.
Analysis – EHC Plan delays Mr X requested an EHC Needs Assessment from the Council on 23 November 2022. The Council had until 4 January 2023 to decide whether it should complete an EHC Needs Assessment of Y. The Council failed to decide to complete an EHC Needs Assessment of Y until 20 March 2023. This delay was outside the statutory timescales and was fault.
Since the Council agreed to complete an EHC Needs assessment, it had 20 weeks to produce the Final EHC Plan from the date of Mr X’s request. This meant, the Council had until 12 April 2023 to produce the Final EHC Plan.
The Council failed to meet the statutory timescales and instead only produced the Final EHC Plan on 15 November 2023. This was seven months outside the statutory timescales and was fault.
This fault caused Ms X avoidable frustration and uncertainty because of the delays in production of the Final EHC Plan.
Within the Council’s Stage 2 complaint response it has advised the delays in production of Y’s Final EHC Plan were because of delays in receiving the Educational Psychologist’s report and reviewing the report.
The Ombudsman would look to award £100 for each month a council delays outside the statutory timescales in producing an EHC Plan because of the delays caused by a lack of Educational Psychologist resources. This £100 payment is a symbolic payment to recognise the frustration and uncertainty caused. Since the Council delayed for seven months this award would be £700.
Analysis – Complaint handling The Council’s complaints procedure says it will provide a full response to a person’s complaint within 28 calendar days of receipt. Mr X submitted his complaint on 7 September 2023 meaning the Council had until 5 October 2023 to provide its complaint response. The Council failed to meet this deadline by seven weeks. This was fault. The Council did issue its second complaint response within the 28 day timescale.
The Council has already acknowledged this fault and apologised for the delay within the complaint response dated 23 November 2023. The Council has also apologised in the complaint response of 21 December 2023 that the response dated 23 November 2023 was not thorough enough.
Since the Council has apologised for the delays in its complaints handling and these delays were not so long as to cause a significant personal injustice to Mr X, I do not consider the Council need take any further action to address this fault.
Agreed action
Within one month of the Ombudsman’s final decision the Council should: Apologise to Mr X and pay him £700 for the distress, uncertainty and frustration caused through delays in production of Y’s EHC Plan for seven months outside the statutory timescales.
The Council should provide us with evidence it has complied with the above actions.
Final decision
There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman