Summary: Mrs X complained the Council delayed completing her daughter, F’s, Education, Health and Care (EHC) needs assessment which has caused a further delay in issuing F’s final EHC plan. The Council was at fault. It delayed obtaining Educational Psychologist advice during the needs assessment which in turn has caused a delay in issuing F’s final EHC plan. The Council agreed to pay Mrs X £500 to acknowledge F’s loss of special education provision and a further £250 to recognise the distress and uncertainty caused to her.

The complaint

1. Mrs X complains the Council delayed completing her daughter, F’s, Education, Health and Care needs assessment during 2022 because of a lack of Educational Psychologists. Mrs X says the Council also delayed putting in place alternative education after F stopped attending school in March 2022 due to anxiety and health reasons. She said the Council has also refused her request for short breaks on two occasions.
2. Mrs X says the delays mean F remains without an Education, Health and Care (EHC) plan and special educational provision to meet her needs which is causing distress, uncertainty and time and trouble.

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What I have and have not investigated

3. I have not investigated F’s lack of education between March and June 2022. This is because Mrs X had appealed to the SEND tribunal about the Council’s decision not to carry out an EHC needs assessment for F. F’s absence from school was part of Mrs X’s reason for asking for an EHC needs assessment and so, is not separable from the appeal.
4. I have also not investigated Mrs X’s complaint about short breaks support because the Council is investigating that element under the statutory children’s services complaints procedure.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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.
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 this decision with Ofsted.

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How I considered this complaint

10. I spoke to Mrs X about her complaint and considered information she provided.
11. I considered the Council’s response to my enquiry letter.
12. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

13. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
14. 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.

15. 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.
16. Those consulted have six weeks to provide the advice.
17. The council should consider, with the child’s parent and the parties listed, the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47).

The SEND Tribunal

18. Certain SEN decisions have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
19. Some of the decisions which are appealable, and we would not usually investigate, include a council’s refusal to carry out an EHC assessment or the content of a plan.
20. If someone appeals to the SEND tribunal about a decision not to carry out an EHC assessment and the council decides not to oppose the appeal, then the Council must issue the final EHC plan within 14 weeks of its decision not to oppose.

Alternative education law and guidance

21. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
22. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. The council must consider the individual circumstances of each child and be able to demonstrate how it made its decision.
23. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health.

What happened

24. Mrs X has a child, F, of primary school age. F’s school attendance reduced towards the end of 2021 because of suspected autism and anxiety. F stopped attending school completely in March 2022.
25. Mrs X asked the Council to carry out an EHC assessment of F with a view to F moving to a more appropriate school placement to meet her needs. The Council decided in early March 2022 not to carry out an assessment. Mrs X appealed this decision to the SEND tribunal.
26. At the start of June 2022, the Council wrote to Mrs X and said it had now decided to carry out an EHC needs assessment of F and had conceded Mrs X’s appeal. The letter informed Mrs X that if it decided to issue an EHC plan then it would do so within 14 weeks, so at the start of September 2022.
27. Records show the Council began carrying out F’s EHC needs assessment however it had no Educational Psychologist (EP) available due to a lack of EPs in general in the area.
28. Records show the Council requested advice from health around Occupational Therapy (OT) however the response said F was already on the waiting list. Records show Mrs X had already commissioned her own private OT report prior to the Council requesting advice.
29. The Council’s requested advice from Speech and Language Therapy, however the response for this was that F was ‘not known to service’.
30. Records show from June 2022 onwards F received some alternative out of school education. Although this at the time was only a few hours a week, the records show Mrs X was happy with this due to it being unlikely F could cope with more.
31. In mid-July 2022 Mrs X complained to the Council. She complained about the Council’s initial decision to refuse to assess F for an EHC plan and said despite now agreeing to assess F there was further delay due to a lack of EP. Mrs X was also unhappy that the Council had not secured OT and SALT advice because F was ‘not know to service’. Mrs X further complained the Council had failed to provide alternative education for F until June 2022 despite her being out of School since March.
32. The Council issued a final complaint response to Mrs X in October 2022:
• It apologised for the delay in completing F’s EHC needs assessment which it was unable to do until it received advice from the EP. It said the delay was due to a lack of capacity within its EP service which it was addressing by actively recruiting additional EPs. It said a private EP it contacted was also unable to carry out the work.
• Regarding OT and SALT, the Council said if health services such as these do not hold information about someone, they are unable to offer advice to the Council. In this instance the Council said it does not seek referral to those services.
• The Council said its inclusion team would be in touch to increase the hours of F’s alternative education.
33. In October 2022 records show F received further alternative education which Mrs X deemed as suitable.
34. Mrs X remained unhappy and complained to us.
35. Since complaining to us, records show the Council sent Mrs X a decision to issue an EHC plan letter in December 2022. It issued F’s draft EHC plan at the beginning of February 2023. At the time of writing F still does not have a final EHC plan in place and remains out of school with alternative education in place in the interim.

The Council’s response to my enquiry letter

36. The Council said it is addressing the shortage of EPs in its area and has entered into a contract to secure private EP advice, however it acknowledged the capacity is far smaller than the demand. It said its recruitment of EPs is ongoing.
37. The Council said at the time writing to me in February 2023, it had 488 EHC needs assessments overdue of which 483 were because of a delay in obtaining EP advice.

My findings

EHC needs assessment and EHC plan timescales

38. We expect 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.
39. The Council conceded Mrs X’s appeal to the SEND tribunal against its decision not to carry out an EHC needs assessment with F at the start of June 2022. The law and Code state, as did the Council’s letter to Mrs X, that on agreeing to issue an EHC plan, it must then issue the final one within 14 weeks. In this case by the second week in September 2022. (As it is clearly the Council’s intention to issue a final EHC plan for F, setting out special educational needs support for her, I have taken this as the start date for the injustice she and Mrs X have suffered as a result of the Council’s delays.)
40. The EPs report should have been available to the Council by mid-July in order for the Council to have met this deadline. The EP did not complete their report until mid-November 2022 which is fault. This service failure came about due the Council being unable to recruit enough EPs to meet demand and no private EP able to carry out the assessment any sooner. This has had a knock-on effect which means at the time of writing F still does not have a finalised EHC plan after it only issued F’s draft plan in February 2023. This is, so far, a delay of 27 weeks. That is also fault.
41. These delays have had an impact on F and Mrs X. F should have had an EHC plan in place by the beginning of the 2022/23 academic year. This may have given her a better chance to reintegrate back into school with SEN provision to support her needs. These delays mean F has lost that opportunity. The delays have also caused Mrs X avoidable distress and uncertainty. I have made a recommendation below to acknowledge this injustice up to the point where the Council issued F’s draft EHC plan in February 2023. It is open for Mrs X to make a new complaint about the ongoing delays in finalising F’s EHC plan after that date.

Lack of OT and SALT advice

42. Mrs X asked the Council to seek OT and SALT advice as part of F’s EHC needs assessment. While there is no absolute duty to seek OT and SALT advice as part of the assessment, the Code says councils should ‘consider’ with professionals what advice is necessary to ensure the assessment covers all of the child’s relevant education, health and care needs. The Council’s policy not to seek advice if a child is ‘not known to service’ means it is unlikely it is fulfilling its statutory duties. It is for councils to decide whether it is reasonable or necessary. It is not health or other services’ responsibility to decide. There is no evidence showing the Council’s consideration whether it was reasonable or necessary at the time for it to seek OT or SALT advice in the particular circumstances relating to F. That was fault as each case such be considered on the individual circumstances and not as a blanket policy. However, in this instance records show Mrs X had already commissioned her own OT assessment therefore I cannot say this fault caused her an injustice. It did however cause her uncertainty around whether SALT advice may have led to SALT provision being included in the draft EHC plan. Once the plan is finalised, if Mrs X believes SALT should be included, she would be able to appeal to the SEND tribunal about this.

Alternative education while F was out of school

43. I have not considered the period March to June 2022 with regards to F’s alternative education for the reasons explained above in paragraph 3.
44. Records show F started receiving some alternative education in June 2022. Although this was not full-time, the information available shows it is likely all F could cope with for the remainder of that academic year, given the concerns about F’s mental health. The Council then agreed to increase the alternative education, and this was in place by October 2022. On balance, it is unlikely F could have coped with more education during that period. Therefore, I find no fault in how the Council handled F’s alternative education provision while she was unable to attend school.

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Recommended action

45. Within one month of the final decision the Council agreed to:
• Apologise to Mrs X and pay her £500 to acknowledge F’s loss of special education provision between September 2022 and February 2023 caused by the delay in completing her EHC needs assessment and issuing her final EHC plan by the required deadline. This payment is in line with our guidance on remedies and accounts for the ongoing alternative education F received in the interim.
• Pay Mrs X £250 to acknowledge the distress and uncertainty caused to her by the delay in completing her EHC needs assessment and issuing F’s final EHC plan.
• Remind its SEND staff who carry out EHC needs assessments, to consider whether it is reasonable and necessary to seek advice and information from relevant health professionals such as OT and SALT, regardless of whether the child is ‘known to service’. The Council should ensure staff make a record of its consideration at the time based on the individual circumstances of the child. If it considers it reasonable, it must seek the advice. If it does not, then it should briefly explain its reasons to the parent who has asked for advice to be included.
46. Within two months of the final decision the Council should issue F’s final EHC plan and advise Mrs X of her right of appeal to the SEND tribunal, should she disagree with the content of the plan. It will be open to the Council to remedy any further injustice caused by its delay in finalising the EHC plan, not covered by this investigation as it was after February 2023, as part of any complaint Mrs X might make.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I completed this investigation. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman