Summary: Ms X complained about the Council’s delay in sourcing an Educational Psychologist report for her son’s Education, Health and Care Plan assessment and how it has responded to her request for advice from other professionals. We found fault by the Council for failing to meet statutory deadlines and for a part of its complaint process. The Council has agreed to our recommendations to remedy the injustice and to take action to prevent recurrence of fault.

The complaint

1. Ms X complains the Council has delayed and failed to meet statutory deadlines after it agreed to carry out an Education, Health, and Care Plan needs assessment for her son after an appeal. Specifically:
1. The Council has been unable to arrange an educational psychologist assessment;
2. She does not agree with the Council asking the school to refer her to an Occupational Therapist (“OT”) and Speech and Language Therapist (“SALT”) herself for her son’s assessment; and
3. She is also dissatisfied with the Council’s complaint handling.
2. Ms X says this is causing distress, frustration and uncertainty for the family, and her son is missing out on getting support and help he 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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. 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.
7. 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

8. I discussed the complaint with Ms X and considered her views, and the information and evidence she sent to me.
9. I made enquiries of the Council and considered its written responses and information it provided.
10. I have considered the SEN Code of Practice 2015.
11. Ms X and the Council 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 administrative background

Education, Health and Care Plans (EHCPs)

12. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
13. 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 EHCPs “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; and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHCP.
14. The Special Educational Needs and Disability Regulations 2014 say:
• If a council refuses to carry out an EHC assessment but then the SEND tribunal orders them to do so, then they must either decide not to issue an EHCP within 10 weeks or issue a final EHCP within 14 weeks of the order. (Regulation 44(2)(b))
15. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). Those consulted have a maximum of six weeks to provide the advice. This includes:
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• advice and information from any person requested by the parent or young person, where the council considers it reasonable.
16. Parents have a right of appeal to the SEND Tribunal. This 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 EHC Plan has been issued.

Background

17. I have summarised below the key relevant events. This is not intended to be a detailed account of every communication or everything that happened.
18. In June 2022, Ms X asked the Council to assess her son (“Y”) for an EHCP. The Council made the decision not to assess him in August.
19. In September, Ms X appealed this decision. Later that month, the Council wrote to say it had agreed to carry out a statutory assessment. In this letter, it said an Educational Psychologist (“EP”) would be allocated and advised there was a national shortage of EPs so there would be a delay in doing this. This was out of its control, and it was not able to tell her when this would happen.

What happened

20. In October, Ms X formally complained to the Council about:
• Delays in the EHC assessment process with not being able to get EP advice and so the Council had failed to meet statutory deadlines; and
• It had not obtained OT and SALT advice after she requested this, to form part of the assessment.
21. The Council responded it was allocating EPs as quickly as its capacity would allow. Due to large numbers of EHC needs assessments and limited staff, it was not possible to do it within statutory timeframes. With her request for OT and SALT input, as Y was not already involved with either of the services, the Council said it was not required to seek advice from them. It was aware a request had been made to Y’s school to make a referral in respect of OT and SALT. It said it would consider any reports made if necessary.
22. In November, Ms X made a request to escalate her complaint to Stage Two. The Council responded and repeated its position about its difficulties in sourcing an EP.
23. Ms X then complained to us. She added the Council had not dealt with her Stage Two complaint appropriately, as it had not been reviewed by a senior officer. She received a response by the same person who had responded to her Stage One complaint. The Council had asked her to fill out forms to refer Y to OT and SALT services. She said she did not agree with this as it would take it outside the EHC assessment process and would not be subject to the six week deadline for advice.
24. Between November and December, Ms X contacted the Council several times for updates. Some relevant points within these emails are as follows:
• She had obtained a private Diagnostic Assessment Report for Y which she wished to be considered as part of the EHC assessment.
• The Council acknowledged her request for OT and SALT referrals and said these would normally come through the school as they have a greater understanding of the needs of its pupils.
• A virtual meeting was set up with the Council, Ms X and her partner to discuss their concerns. Ms X said to me the Council had agreed to complete OT and SALT assessments during this.
25. Ms X disputed her son was not known to SALT services. She said she had discussed his history with the Council at several points. She sent evidence to show there had been major SALT involvement with her son between 2015 and 2016. This was in the council area where he previously lived, before moving to Essex.

The Council’s response to my enquiries

EPs

26. The Council said it had taken a number of steps to address its staffing, including recruiting newly qualified EPs, engaging Associate EPs, and sponsoring EPs from abroad with work visas. It was also conducting an analysis on the recruitment and retention of EPs at the Council and implementing a number of recommendations from that work.
27. It ensured EP allocations were made according to date order to ensure equity. It had also offered parents to complete EP assessments virtually to expedite the process. It was backdating funding for all completed plans to the 20 week mark.
28. The Council said it would consider the use of independent EPs but it takes into account their availability and the costs. There was also a limited pool of independent EPs.
29. At that point in time, the Council confirmed nearly 530 children and young people were being affected by the same issue and an average wait time of 8-12 weeks in allocating EPs to cases over the past year.

OT and SALT referral

30. The Council said the therapy services confirmed in September 2022 that Y was not known to it. At the end of September, the Special Educational Needs Co-ordinator (SENCo) from Y’s school agreed to make a referral for assessment. The Council chased this up in November. The school advised the SENCo had met with Ms X and her partner with the forms, but nothing had been returned to the school.
31. The Council said it was the view of the therapy services that schools are best placed to make referrals for children if there were concerns about either OT or SALT needs. This was to ensure appropriate information is given including what support the school already has in place for the child and a detailed description of needs. This ensured referrals were of good quality and made by professionals with a good working knowledge of the child.
32. The Council provided notes from the November 2022 virtual meeting with Ms X and her partner. There was no noted agreement by the Council about the OT or SALT assessments. There was an action point for the Council to check the private report provided by Ms X and revisit whether SALT or OT was appropriate.
33. In March 2023, a Council EP had assessed Y and sent their report to the Council. This was during the course of my investigation.
34. It was the Council’s view, after reviewing the information from the reports, there was no evidence of the need for a SALT assessment, but it felt an OT assessment could be beneficial. It said a referral to OT has been made. Ms X has said the Council has now confirmed it will issue an EHCP for Y.

Analysis

EP delays

35. I note the Council’s position about independent EPs. However, it was still an option available to it. It should be making attempts at sourcing external EP reports to try and minimise delays when faced with the demands of its internal professionals. This is fault. The Council should consider the provision of independent Educational Psychologist reports sooner in its EHC assessments process.
36. Following on from this, the EP advice should have been received within six weeks. The Council remains responsible for meeting this deadline and to ensure EHC assessments are completed within statutory timescales. It failed to do this for Y. I acknowledge the real difficulties the Council faces with sourcing EPs and it is a national issue, but this a legal duty councils must meet. This is fault.
37. I note there are a large number of children and young people affected by this fault in the Council’s area causing injustice to others. I recognise the Council’s detailed actions it says it is taking to try and reduce the backlog. I have recommended below that this is monitored to measure its effectiveness.

OT and SALT referrals

38. I note Ms X says Y is known to SALT services. However, the Council’s response was correct as Essex services have had no involvement with Y. This is stated in the EP report. The evidence she provided indicated historic SALT services but in a different county.
39. As OT and SALT professionals were not currently involved, the Council said it was not statutorily obliged to seek advice. But it acknowledged Ms X’s request and took it through an alternative route because the therapy services did not hold information on Y. This led to the school presenting forms for Ms X to sign so the OT and SALT referrals could be made. In my view, this is not unreasonable.
40. The Council’s explanation for why it asked the school to make a referral is satisfactory. It said the therapy services encourage referrals to it to be made by schools. This also lines up with statutory guidance which says decisions about the level of engagement and advice needed from different parties will be informed by knowledge of the child held by the school they attend. I do not find fault with the Council for this.
41. I recognise Ms X disagreed with this approach as she was concerned it was outside of the EHC assessment process and would not be subject to the six week deadline for advice. This is something the Council would have been expected to manage. It was open for her to sign the forms so the school could make the referral for an assessment since October 2022. As covered above, there was already ongoing delay by the Council with the EP report (which is statutorily required, and the fault already covered above) which was not obtained until March 2023.
42. When the EP report was received, it appears the Council took both this and Ms X’s private report into account. It then considered the information it now had from professionals who had assessed Y, and then made a decision on how it would proceed on this evidence. This is appropriate and what we’d expect the Council to do.

Complaint handling

43. The Council dealt with Ms X’s complaint under its Corporate Complaints process. I have reviewed the Council’s complaint policy, and this is a one stage process which ended with its initial response. I do not find fault with the Council for the same staff member responding to her escalation request or not having a senior officer respond to it. It had followed its policy.
44. However, at the end of its first response to Ms X’s complaint, it did not signpost to her that she could now take her complaint to us. The Council only did this after she tried to escalate this. It is our expectation for councils to do this after final responses to complaints. This is fault and caused injustice as it then failed to communicate her right to challenge its decision externally at the appropriate time.

Decision delay

45. The Council agreed to assess Y on 20 September 2022. After this, if a council decides not to issue an EHCP, it must notify the parents within 10 weeks. This would have been 29 November. If a council decides to issue one, it must send the final plan by 14 weeks, which would be 27 December. The Council has now confirmed it will issue an EHCP for Y. At the time of writing, this is a delay of over four months, mainly because of EP delays. This is fault and notably outside of the statutory timeline. This has caused injustice as it has frustrated Ms X’s right to appeal to the SEND Tribunal should she choose to do so.
46. Currently, there is no final EHCP issued. Without an EHCP about provision that should be delivered, I cannot say what Y may have missed out on due to this delay. I can only recommend a remedy payment for the distress and uncertainty to Ms X and Y with the delay itself up to this point, recommended below. After this decision, once an EHCP is issued, should Ms X wish to make a new complaint about potential lost provision and any possible remaining injustice, she can come back to us after first asking the Council to consider the matter.

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Agreed action

47. Within one month of the final decision, the Council has agreed to carry out the following actions:
• Apologise in writing to Ms X and Y for the delays in the EHC needs assessment process;
• Pay Ms X £200 to recognise the distress, frustration and uncertainty caused to her and Y by the delays;
• Pay Ms X £100 to recognise the injustice from her delayed appeal rights; and
• Send written reminders to staff involved in complaints handling to ensure they signpost complainants to the Local Government and Social Care Ombudsman when it has finished its consideration of complaints. Any relevant templates should be updated to reflect this.
48. Within three months of the final decision:
• The Council should establish clear guidelines for practitioners to consider the provision of independent Educational Psychologists within its EHC assessment process sooner, to include how and when to do this. This should be sent to all relevant staff; and
• The Council should update us on the action it has said it has taken to try and resolve the delays with the availability of Educational Psychologists. This should include what effect it has had on the number of children and young people waiting for EP input in an EHC needs assessment and average waiting times.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I found fault with the Council which caused injustice to Ms X and Y. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman