Summary: Mrs X complained the Council delayed issuing an Education, Health and Care Plan for her son. The Council’s delays amounted to service failure. There was also fault with the Council’s communication. The Council agreed to provide a remedy for the missed professional input.

The complaint

1. Mrs X complained the Council delayed issuing an Education, Health and Care (EHC) Plan for her son, Y. She said it took the Council more than 35 weeks to issue the EHC Plan.
2. Mrs X said her son needed an assessment from an Educational Psychologist (EP) to complete his EHC Plan, but the Council failed to arrange it. She said the Council only made arrangements after she sought legal advice and served the Council with a Pre Action Protocol (PAP) letter from a solicitor.
3. Mrs X also complained the Council’s communication was poor throughout.

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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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. As part of the investigation, I considered the complaint and the information Mrs X provided.
9. I made written enquiries of the Council and considered its response along with relevant law and guidance.
10. Mrs 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

Legislation and guidance

11. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
12. 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:
• 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 EHC Plans “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 EHC Plan 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 EHC Plan.
13. 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 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.
14. Those consulted have a maximum of six weeks to provide the advice.

What happened

15. I have summarised below some key events leading to Mrs X’s complaint.
16. Mrs X asked the Council to conduct a needs assessment for Y on 20 May 2022. The Council agreed to carry out the assessment on 23 June.
17. Mrs X complained on 15 September 2022. She said the Council told her professional reports were due on 4 August. She also said the Council should have told her whether it would issue an EHC plan by 9 September, but failed to do so.
18. Mrs X contacted the Council again on 12 October. She said the deadline for the Council’s stage one complaint response was 11 October. She asked the Council to escalate the complaint to stage two. She also said the 20-week deadline for the Council to issue an EHC plan passed on 7 October, and she intended to take legal advice about a judicial review.
19. The Council sent its stage one complaint response on 13 October. It said:
• It should have issued the EHC plan by 7 October 2022.
• It was still waiting for professional evidence from an EP, and it needed this to complete the assessment.
• It recognised it failed to meet the statutory timescale.
• Educational Psychology services across the country are experiencing difficulties recruiting EPs. It acted to address this by prioritising statutory assessment work over other work. It also advertised locally and nationally to fill vacancies, extended use of locum and associate EPs, and commissioned an external provider for support with assessment work.
20. The Council apologised for the delays. It said it had identified ways to improve its service delivery and it aimed to improve communication with parents.
21. Mrs X was unhappy the Council’s only solution was to wait for an EP to become available. She said she would start a judicial review. She also asked for a stage two complaint consideration.
22. The Council replied on 16 November. It said it was not suitable to continue with the complaint if Mrs X was taking legal action.
23. Mrs X said her solicitor issued a PAP letter to the Council, and it then arranged an EP assessment. Mrs X therefore agreed not to continue with the judicial review. Mrs X said it was now 26 weeks into the assessment process, and the Council only arranged an EP assessment after stressful and expensive legal action. Mrs X therefore did not accept the Council resolved the complaint. She asked the Council for a stage two consideration.
24. The Council sent its final complaint response on 28 November 2022. It said:
• Recruiting a private EP was not possible due to the national shortage of Educational Psychology professionals.
• Its legal team responded to Mrs X’s concerns, so it was inappropriate to also consider the same issue via the complaints process.
• The complaints process cannot dictate or influence decisions on issuing EHC plans.
• The Council was at fault for delays with the EHC assessment. It apologised for this.
25. The Council issued Y’s final EHC plan, with amendments, on 23 February 2023.

My investigation

26. Mrs X told me that, while the Council did resolve the situation, she felt ignored throughout. She only got answers or action from the Council after taking legal advice, chasing up caseworkers, and copying in senior officers.
27. Mrs X said the Council’s delays issuing Y’s EHC Plan meant he missed intervention and support for about 15 weeks. She told me Y attends pre-school five days a week. Mrs Y said the pre-school tried to support Y, but lacked professional advice from the EP and the Speech and Language Therapist (SLT). This meant Y was unnecessarily anxious, was less able to communicate his needs or communicate with peers, and did not have suitable support and learning provisions.
28. In response to my enquiries, the Council said it has seen a 64% increase in referrals for EHC plans since 2020. At the same time, there has been a national shortage of qualified EPs, and staffing levels within the EP service are at 50%.
29. The Council told me it is running a priority recruitment programme to attract more Educational Psychology staff and other professionals who contribute to the assessment process. It said it has recruited four EPs since September 2022. It is also providing extra funding, and has set up 16 assistant psychologist posts. The Council believes its SEN service will be at full capacity by May this year.
30. The Council said it has introduced a communication protocol for any professional advice not received on time. Officers will contact families every three weeks with an update. The Council will hold local drop-in sessions to give reassurance and support to families. And area leads will consider the Council’s communication with families, and complaints, monthly.

Analysis

31. After the Council agreed to perform an EHC needs assessment for Y, it had a statutory duty to issue his EHC Plan by 20 weeks from the date of Mrs X’s request for an assessment. The Council missed that deadline.
32. I recognise there was a shortage of EPs available, and the Council could not complete Y’s EHC Plan without their input. However, missing the statutory deadline amounts to service failure by the Council. That was fault.
33. I found the Council was actively looking to source more EPs. It also used locum EPs from outside its service. However, it faced increased demand and worked on cases in priority order. That meant some delays across its service, but I did not find that was due to maladministration. The recruitment steps taken by the Council should mean it is in a better position to meet the demand going forwards.
34. The Council did not provide Mrs X with updates on the EHC assessment process, and it did not make her aware of the delays until she complained. That was fault. The Council recognised it needs to improve its communication with families about EHC assessments. It has taken steps to do so.

Injustice

35. The Council’s delay issuing Y’s EHC Plan, and its lack of communication, caused Mrs X frustration and worry. As a result, Mrs X took legal advice costing £360.
36. We do not normally recommend repayment of legal costs, as complainants should not need a solicitor to complain. However, we can consider recommending a remedy to repay legal costs which directly flow from the fault identified.
37. I found the Council only progressed Y’s EHC assessment when it did because of the PAP letter from Mrs X’s solicitor. This resulted in the Council issuing Y’s EHC Plan sooner than it otherwise would have. The Council should therefore pay Mrs X’s reasonable legal costs.
38. Because of the Council’s delay issuing Y’s EHC Plan, Y missed important Educational Psychology input to plan his learning and support his engagement. He also missed SLT input to support his communication. This was for a period of about 15 weeks. Y is due to start reception class at Primary School in September, so it is an important time in his development. I am pleased to note from a recent update to Y’s assessment that he is making good progress and is catching up. Nevertheless, the Council should provide a remedy for the missed professional input.

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Agreed action

39. Within four weeks of my final decision, the Council should:
• Apologise for the distress its delays and lack of communication caused Mrs X and her family.
• Pay £360 to Mrs X in recognition of the legal advice she had to take.
• Pay £500 to Mrs X in recognition of the 15 weeks professional input Y missed.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation. The Council’s delays amounted to service failure. There was also fault with the Council’s communication.

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Investigator's decision on behalf of the Ombudsman