Summary: We uphold a complaint made on behalf of Mrs C, that the Council was at fault for delay in issuing an education, care and health plan for her son and in answering a complaint. We also found fault in the Council’s approach to seeking specialist advice as part of the assessment. These faults caused uncertainty for Mrs C and impacted on her son’s education. The Council has accepted these findings. At the end of this statement, we set out the action it has agreed to take to remedy this injustice and make service improvements.

The complaint

1. ‘Ms B’, an advocate, complains on behalf of ‘Mrs C’ and her child ‘D’. Ms B’s complaint concerns the service provided by the Council after it agreed to carry out an education, health and care needs assessment of D’s needs. She complains the Council:

• delayed in completing the assessment and in issuing an Education, Care and Health (EHC) plan for D;
• misunderstood its duty to obtain advice from relevant professionals to inform the assessment and D’s EHC plan; and
• delayed in answering a complaint Ms B made about its service.

2. Ms B says as a result D received only limited help with strategies to support his special educational needs during Year 6 of his education. Further, that both Mrs C and D experienced anxiety and distress with uncertainty around where D would attend school from September 2023 (the start of his secondary education).
3. Ms B acknowledges the Council, following an investigation of this complaint, has recognised fault. It has offered Mrs C an apology and symbolic payment of £300. However, Ms B says Mrs C does not consider this payment enough to recognise the effects of the faults on her and D. She would also like the Council to make changes following her experience. For example, in the way it prioritises requests for educational psychology assessments and when it follows up with specialist services whose advice it has sought.

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The Ombudsman’s role and powers

4. 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)
5. 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)

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How I considered this complaint

6. Before issuing this decision statement I considered:

• Ms B’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence between Ms B and the Council about the matters forming the complaint, pre-dating our investigation;
• information provided by the Council in response to our enquiries;
• any relevant law, Government guidance or Council policy referred to below;
• relevant guidance published by this office including the Ombudsman’s guidance on remedies.

7. I also invited Ms B and the Council to comment on a draft version of this decision statement. I took account of any comments they made, or further evidence they provided, before finalising the decision statement.
8. There is an information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted). Under the terms of that agreement, I will share my final decision statement with Ofsted, in advance of publication on our website.

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What I found

Legal and administrative background

9. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and arrangements to meet them.
10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for undertaking EHC assessments and producing EHC plans. The guidance supplements 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 decide within six weeks whether to agree to the assessment;
• it must carry out “in a timely manner” the assessment of needs and developing the EHC plan;
• the time between the request for an assessment and issue of the final EHC should be no more than 20 weeks (unless certain specific circumstances apply).

11. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:

• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

Council complaints procedure

12. On its website the Council explains its corporate complaint procedure as follows:

• that it is a two-stage procedure;
• that at stage one the Council aims to reply to complaints within 10 working days and a maximum of 20 working days;
• that at stage two, an officer, usually independent of the service complained about, will produce a report and recommendations. The service Director and Chief Executive will consider that report;
• the Council aims to respond to complaints at stage two of the procedure within 20 working days.

Key facts

13. Below I set out a chronology of contacts between Ms B and the Council, setting out the key events forming this complaint. The chronology does not cover every exchange between the two, focusing only on those events I consider most critical to reach findings on this case.
14. I date the start of events as mid-May 2022. This is when Ms B, acting for Mrs C, requested an education, health and care needs assessment for D, who was then in year 5 of his education. Mrs C has dyslexia. She went to Ms B’s advocacy service because she struggles to complete paperwork and to understand written communications as a result.
15. In June 2022 Ms B asked the Council to seek advice to inform the assessment from an Occupational Therapist (OT) and Speech and Language Therapist (S&LT). Ms B explains she asked for this after D saw a specialist teacher who recommended assessment by these professionals. The request was made in accord with SEND Regulation 6(1) as described at paragraph 11 above.
16. In late June 2022 the Council agreed to carry out the education, health and care needs assessment. In mid-July 2022 Ms B asked the Council if it would also seek the specialist advice requested. The Council says it replied to this request in late July, and that it told Ms B it was waiting for specialist services to respond. Neither Ms B nor Mrs C received this email. When Ms B chased again, a Council officer told her it would not follow-up with those services to chase a reply until six weeks expired.
17. In early September the Council told Ms B it would not seek advice from a S&LT. It said it still awaited contact from OT services. It also awaited contact from the education psychology service, which needed to assess D’s needs.
18. Ms B put in a complaint at this time, because the Council:
• had not confirmed if it was seeking OT advice as part of the assessment;
• had not given Mrs C any assurance it would provide D with an EHC plan; and
• had not provided a timetable for when it would make decisions on D’s case.
19. A manager from the Council’s special educational needs service replied at the end of September 2022. They apologised for the delay in completing D’s assessment. They explained there was a backlog in completing education psychology assessments. The reply said the Council could not complete the education, care and health assessment without that. It said the Council still waited for the OT service to respond to its contact. The response said the Council was meeting its duty under Regulation 6 “to seek the advice and information specified”. But it also said it was not under a duty to “secure this advice”.
20. Unhappy with this reply, Ms B escalated her complaint to stage two of the procedure. She complained at the delay in the Council completing its assessment. Ms B said that under Regulation 6, the Council had a duty not just to ask for advice, but to secure advice, from an OT and an education psychologist. It said the Council had not kept in touch with Ms B or Mrs C to let them know what was happening during the assessment. It suggested the Council needed a better procedure for following up advice requests than waiting for the six-week timescale to expire.
21. At the end of October 2022 Ms B alerted the Council to private education psychologist known to her to have capacity to undertake an assessment of D. The Council did not respond to this request directly but told Ms B the next day that it had now assigned D’s case to an education psychologist. They went on to complete their assessment in late November.
22. In mid-November the Council told Ms B it was not seeking OT advice for D. Ms B says the Council provided no reasons for this decision, so she challenged it. She also provided further reasons why Mrs C considered an OT assessment necessary.
23. Also, in mid-November the Council told Ms B its reply to her stage two complaint would be late. It said it could not give a timescale for when it would reply. It gave a further update in early December 2022 in similar terms.
24. Ms B sent a further two emails challenging the Council’s decision not to seek OT advice. It replied in early December 2022 saying it would have further discussion with the relevant NHS service.
25. Frustrated at having no further reply to her complaint, Ms B contacted this office in mid-December. We referred the complaint back to the Council to complete its reply to her complaint.
26. In mid-December 2022 the Council received education psychology advice. At the beginning of February 2022, it agreed to provide D with an EHC plan. It circulated a draft for comment.
27. At the beginning of March 2022, the Council issued D with an EHC plan. This was 41 weeks after Ms B first requested an assessment.
28. On the same day Ms B sent the Council a copy of a privately commissioned OT report which Mrs C had just received. Later the Council agreed to further amend D’s EHC plan to take account of this information. It also paid Mrs C for the cost of this report.
29. Ms B chased again a reply to her outstanding complaint. The Council told her three times in early, mid and late March that a reply was imminent. She contacted us again in April 2022 unhappy at the continuing delay. The Council told us in early May 2022 it had taken legal advice and was waiting on this before it could complete its response.
30. The Council sent its stage two response in the second half of May 2022, so around eight months after Ms B submitted it. The Council:

• apologised for the delay in its reply;
• explained it had experienced a doubling of demand for assessments of pupils with special educational needs since 2021. It explained the national shortage in education psychologists and that it had “proactively established commissioning arrangements with private organisations to complete a proportion of EP assessments". It also used “EHCP writing services” to issue ECH plans more quickly and set out other measures to support schools with special educational needs to improve its services to those pupils;
• said it could not add to its early finding that it had delayed in issuing D’s EHC plan;
• confirmed its position was that when it asked professionals for advice it did not need to secure this. Its role was to “seek the advice” only;
• that in response to the request it take advice from an OT it had approached the local NHS OT services in June 2022. In September that service told the Council it had no record of contact with D. Consequently, the NHS service said it could not contribute to D’s EHC plan;
• it accepted its communications had sometimes been inadequate. It said it had asked the NHS OT service for clinical reasons why it considered D did not need an assessment. It said it should have explained that to Ms B before;
• it offered a symbolic payment of £300 to Mrs C. This comprised three payments of £100. First, to recognise the delay in waiting for D to have an education psychology assessment. Second, for its poor communications. Third, for the delay in answering the stage two complaint.

My findings

Complaint about delay in the EHC plan

31. I have considered each part of the complaint in turn, beginning with the issue of delay in the Council completing D’s education, care and health needs assessment.
32. The Council has already recognised fault here. It took it around twice as long as it should to progress Mrs C’s request for an assessment, to the point where it issued D with his EHC plan.
33. I find the principal cause of the delay was, as the Council says, because of delay in securing educational psychology advice. The Council must always obtain this before it can complete an EHC plan. I accept the point made by the Council, that there is a national shortage of educational psychologists. This is contributing significantly to delays in completing EHC plans.
34. So this is, to some extent, a factor outside the Council’s control. However, we still must regard the resulting delay as a service failing by the Council. We also expect councils to do what they can, to limit delays.
35. With this in mind, I note the comments made by the Council in response to Ms B’s complaint setting out what it is doing to try and reduce delays. I have also considered recent investigations undertaken by this office, where we have come across similar delay. We have previously asked the Council to share with us details of steps taken to address this and satisfied ourselves with the assurances received. So, I do not consider there is scope for me to make any recommendations designed to improve the Council’s service at this time.
36. In reaching this view I have considered Mrs C’s suggestion the Council should introduce a different system for prioritising education psychology reviews. It currently does so based on date order only. Mrs C says the Council should have given D’s case higher priority as he approached Year 7. This is because this is a critical time for any child as they transfer to secondary education.
37. However, it is not part of our role to tell the Council how to set priorities for the education psychology service, so long as there is no fault in the system currently used. In my view we could not say the current system used by the Council, has any administrative flaw. It has explained that it considers this system fairest and I consider this a position it can reasonably adopt.
38. I also note that in this case there was a suggestion made by Ms B the Council could commission a private education psychologist to complete an assessment. In times of delay the Council should be open to such a possibility. But I note the request in this case coincided with the Council assigning D’s case to an educational psychologist. So, I do not find any specific fault in the Council not agreeing to it.
39. This leaves me therefore to consider the consequence of the Council’s service failing on Mrs C and D.
40. I consider they experienced injustice because of the Council’s delay. An EHC plan is a practical document that outlines strategies for helping to teach children with special educational needs. So, while D did not go without education during the delay, I find this is likely to have been less beneficial to him than if the EHC plan was in place sooner. I consider the most suitable way to remedy this injustice is, as the Council has done, to offer a symbolic payment in recognition of this impact. However, I do not consider the amount offered by the Council consistent with our approach on this matter. So, have recommended, and the Council has agreed to make, a higher payment based on the Ombudsman’s published guidance on remedies.
41. I also accept that Mrs C and D experienced uncertainty. This is because the EHC plan would name D’s education setting from Year 7 onward. Not knowing this information will have caused some limited, separable distress. This too is something that I asked the Council to remedy and it has agreed to do so.

Complaint about the Council’s approach to specialist advice

42. Where the Council receives a request from a parent who wants specialist advice to form part of their child’s education, health and care needs assessment, the Council should consider that on its merits in line with SEND Regulation 6. The Council does not have to agree to the request. But it must decide if it is a reasonable request. Before doing so it may understandably want to make a quick check with local NHS therapeutic services to find out if they are aware of the child or young person. But the Council must decide quickly whether to seek advice given the timescales it must keep to as part of its assessment. And crucially, it must engage with the reasons put forward by the parent for the request. So, where it decides not to agree to a request, it must provide reasons.
43. If, alternatively, the Council agrees to seek advice the Council then it must go on to obtain that advice. The relevant Regulations refer to the Council “obtaining” advice as part of the assessment. And the statutory guidance says that councils ‘must gather’ advice, making clear this is an obligation.
44. In this case I consider the Council conflated these matters and did not follow the clear path set out above. It delayed in telling Mrs C it would not agree to seek S&LT advice. And it gave confusing replies to Mrs C’s request for OT advice, meaning I cannot say if it thought it reasonable or not at the outset. When the Council referred D’s case to NHS services, it gave the impression it was seeking advice. But it later said it did not need such advice. However, it then told Ms B it would go back to the service, therefore again giving the impression it wanted advice after all. However, it finally issued the EHC plan without advice.
45. The Council also further confused matters by dwelling on the question of its specific legal duties when answering Ms B’s complaint. As I have set out above, I think the law clear. The Council does not have to seek specialist advice (aside from education psychology advice) as part of an education, health and care needs assessment. But if it does so it must ensure it obtains this. Dwelling on this question also misses the point of where fault lay in this case. First, that its officers failed to make a clear decision at the outset about whether they thought Mrs C had made a reasonable request or not. Second, that it failed to engage with the reasons Mrs C put forward for wanting specialist advice. Because while saying D was ‘not known to services’ was something the Council could weigh in a decision, it could not of itself be a reason for not seeking advice.
46. I consider these faults caused Mrs C injustice in the form of unnecessary uncertainty, which we consider a form of distress. I do not consider I can say that but for the fault the Council would have decided to seek specialist OT advice. But its failure to make a clear decision delayed Mrs C in seeking her own private assessment for D, something which later went on to inform an amended version of D’s EHC plan.
47. I recognise the Council has already recognised some poor communications here and offered a symbolic payment for this. But I do not consider this enough to recognise the injustice caused to Mrs C. The Council has agreed to my recommendation for how it can remedy this injustice as well as improve its service in this area.
48. One added point made by Ms B concerns the timescale in which the Council follows up on requests for specialist advice, when it has not received it. I consider ideally a service should be reminded of the six-week deadline before it expires. However, the Council will make clear when seeking advice, the date when a service should respond. So, I do not find fault with the Council approach of not chasing a response before the six-week deadline expires.

The Council’s complaint handling

49. I must also uphold this part of the complaint. As the Council has acknowledged there was excessive delay in concluding its consideration of Mrs C’s complaint at stage two of its complaint procedure. I recognise the 20-working day target for a reply is aspirational. There will be times when for good reasons the Council cannot meet this deadline, and this will not result necessarily in a finding of service failure. In this case I can appreciate why the Council sought some additional advice to answer the complaint. I also consider it positive that its complaint procedure involves consideration by its most senior officers.
50. However, I consider these factors provide only limited mitigation for the delay. And while I also recognise the Council did make some efforts to keep in touch with Ms B and explain there would be a delay these were not always consistent. It raised her expectations more than once that a reply was imminent, and she was then left waiting longer.
51. These delays added to Mrs C’s time, trouble and frustration, which I consider an injustice. They also added expense in increased costs for Ms B’s services, which she estimates at around £260.

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Agreed action

52. The Council has accepted the findings set out above and recommendations I made for how it could provide a personal remedy for Mrs C’s injustice and improve its services. The details are set out below.

Personal remedy

53. Within 20 working days of this decision the Council will:
1. provide Mrs C with an apology recognising the findings of this investigation and taking account of section 3.2 of our guidance on remedies; Guidance on remedies - Local Government and Social Care Ombudsman
2. pay Mrs C a symbolic payment of £925; Of this, £475 is for the delay in completing D’s EHC plan caused by service failure calculated at £100 a month and a delay of almost five months; £200 for the uncertainty created by the delay and the Council’s handling of Mrs C’s requests for specialist advice; and £250 for Mrs C’s time and trouble and expense caused by the Council’s poor complaint handling. This payment replaces the £300 payment offered by the Council previously and is not in addition to it.
54. The symbolic payments take account of our published guidance on remedies. I decided against recommending a specific award for Mrs C’s advocacy costs. I understand why Mrs C chooses to use an advocate. But our expectation is whether it is discharging its special educational needs service or its complaint handling function, the Council should make reasonable adjustments for those with dyslexia. Thereby meaning advocacy while desirable, is not necessarily required.
55. While I lack evidence the Council offered Mrs C any reasonable adjustments, I also lack evidence that any such adjustments were asked for or sought before she asked Ms B to represent her. I find on balance therefore Mrs C’s use of an advocate is solely a matter of choice. Our guidance on remedies starts with a presumption that we do not recommend payment for advocacy services in these circumstances.

Service improvement

56. The Council has agreed to make service improvements to try and avoid confusion where a child, young person or parent requests specialist advice as part of an education, health and care needs assessment. Within two months of this decision, it will ensure relevant staff have received a briefing to make clear:

• there is an onus on the Council to decide such requests promptly;
• that it must clearly state whether it is seeking advice or not and give reasons for its decision;
• that while it may want to check if a child is known to NHS therapeutic services this should not delay a response to a request and nor is it determinative of whether it should accept or reject the request;
• that where it has sought advice, it must gather that advice;
• that where there is delay in receiving advice there must be routes to escalating requests to senior officers for action.

57. The ‘briefing’ can be in whatever form the Council considers most appropriate. It could be in writing, at in-person meetings such as team meetings, or part of any pre-arranged training.
58. The Council will provide us with evidence it has complied with the above actions.

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Final decision

59. For reasons set out above I upheld this complaint finding fault by the Council causing injustice to Mrs C and D. The Council has agreed action that I consider will remedy that injustice and improve its service. Consequently, I can now complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman