Summary: Mrs X complained the Council has failed to progress her son’s Education, Health and Care Plan assessment in a timely manner. She also complained the Council has not kept her informed. There were delays in the assessment. The Council will apologise and make a payment to recognise the distress and frustration caused to Mrs X and her family.

The complaint

1. Mrs X complained the Council has failed to progress her son, C’s, Education, Health and Care Plan (EHCP) assessment in a timely fashion. She complained it has also not kept her informed during this time.
2. She says this has caused her son distress. She says it has affected C and the family’s mental health. She feels he has missed out on Speech and Language Therapy (SaLT) provision and toilet training which he desperately needs.

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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 an injustice, 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 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

6. I have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

8. 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 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 EHCP “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHCP.

9. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist. Those consulted have a maximum of six weeks to provide the advice.
10. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
11. 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. (Education Act 1996, section 3A and 3AA)

What happened

12. C is autistic. He began attending school in reception and started year one in September 2021. The school made applications for further funding in September 2020 and September 2021. The school provided C with a support plan prior to the EHCP being issued. Under the plan C received one to one support in school, attention autism sessions three times a week, augmented communication system work and toilet training.
13. In October 2021 C began gross motor skill sessions once a week.
14. In late November 2021 Mrs X requested an education, health and care needs assessment. The Council agreed to undertake an assessment in late December. It requested a report from an educational psychologist.
15. The Council provided an update in mid-February, early, mid and late March, and mid-July 2022 when Mrs X asked. It also provided an update in mid-May at the end of the 20 weeks. It explained it was awaiting the educational psychologist report.
16. Mrs X raised a complaint in July about the delay. The Council responded in mid-August and accepted there had been delays. It explained it was experiencing high demand for educational psychologist assessments which meant the process was taking longer than it should. The Council explained it was working to reduce the delays and had hired an additional education psychologist. The Council offered Mrs X an apology for the distress caused by the delay.
17. The educational psychologist made their report in mid-September 2022. In mid-October the Council agreed to issue an EHCP for C.
18. An initial draft was written in late October 2022. Both the school and Mrs X raised concerns about the health content and the SaLT. The Council agreed to consider these comments and issued a further draft in mid-November.
19. The final EHCP was issued in late November 2022. The EHCP contained the following provision:
• One to one support.
• Attention autism sessions three times a week.
• Daily sessions with an augmented communication system.
• Personalised curriculum.
• Weekly sessions to develop turn taking.
• Weekly sessions to develop emotional awareness.
• Weekly gross motor skills session.
• Timetabled toilet visits.

Findings

20. The Council has accepted that it did not issue the EHCP for C within 20 weeks. The Council took a total of 11 months. I appreciate the Council in its response to the complaint explained there was a delay caused by the unavailability of educational psychologists. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for the service failure. Whilst I accept there are reasons for some of the delays, this is fault.
21. But for the fault, I have concluded the Council would have been in a position to issue the EHCP before the end of C’s first year of primary school.
22. Although there was a delay of nearly one term in the EHCP being issued C has not missed out on provision. C’s support plan from September 2021 meant he was receiving one to one support, attention autism sessions, SaLT - in the form of the augmented communication system - and toilet training. This support plan provided the same provision as the EHCP and as such there has been no loss of support.
23. The delay has caused frustration and worry for C’s family. They were concerned that he might not be receiving the support he needed during a crucial time in his education.
24. The Council updated Mrs X when she requested information in February and March and July. It also informed her that it would not be able to issue a decision within 20 weeks in May. The Council explained the reason for the delay but did not provide her with any information on when it was likely to obtain a report. It referred her to the educational psychologist to obtain wait times. The Council should provide an update without being chased and include all relevant information. This has added to the frustration C’s family experienced.

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Agreed action

25. Within one month of this decision the Council will:
• Apologise to Mrs X for the injustice caused by the identified faults;
• Pay Mrs X £200 to recognise the worry and frustration caused to her and her family by the delay in issuing C’s EHCP.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have completed my investigation. I have found fault leading to an injustice. I have recommended action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman