Summary: Ms X complained the Council delayed completing her child, K’s Education, Health and Care (EHC) plan. The Council was at fault for delay caused by a shortage of Educational Psychologists. This caused a delay in the Council issuing K’s final EHC plan. The Council will apologise and pay Ms X £300 to recognise the frustration and uncertainty the delays had on her.

The complaint

1. Ms X complained the Council delayed completing an EHC assessment for her child, K. Ms X said the delay meant K did not receive the provision they needed. She said this caused her unnecessary frustration.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
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)
6. 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

7. I have considered:
• all the information Ms X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
8. Ms 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

Relevant law and guidance

Education, Health and Care plan (EHC) plan

9. Children with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the child’s special educational provision and section I ‘names’ the school or type of school the child will attend. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
10. 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 assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC plan after an assessment, it should prepare a draft EHC plan and send it to schools that may be able to accept the child or young person and meet their needs. Schools should respond to the consultations within fifteen calendar days; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC plan.
11. There is a right of appeal to the SEND Tribunal about the educational provision and placement named in a child’s EHC plan. This appeal right is only engaged once the final EHC plan has been issued.

What happened

12. Ms X has a child, K, who attends a pre-school. In late November 2022, K’s school asked the Council to carry out an EHC assessment. The Council agreed, and placed K on the waiting list for Educational Psychology advice.
13. The EP issued their report in late March. The Council issued K’s draft EHC plan at the end of May after Ms X sent it some additional information in early to mid-April, including an independent Speech and Language Therapy report and independent Occupational Therapy report.
14. The Council sent consultations out to a local mainstream school and Ms X’s preferred specialist school the same day it issued the draft plan.
15. The mainstream school responded to the consultation in early June and the specialist school replied in mid-June. The Council finalised K’s EHC plan at the end of June, naming the mainstream school.
16. Ms X has appealed the plan, including the placement.

Educational Psychologists

17. The Council told me it is being affected by the nationwide shortage of EPs. It has 620 children and young people waiting to see one as part of their EHC plan assessment. This is an issue for many councils as the number of EPs has declined and the number of EHC assessment requests has increased dramatically.
18. On other similar cases, the Council told us that to manage the demand it:
• is constantly looking to hire new EPs and has successfully hired some;
• has introduced overtime;
• re-designed its department;
• uses independent EPs to act as “Associate EPs”, who produce advice to the standard required by the Council; and
• offered virtual assessments to reduce how long each assessment takes.
19. The Council allocates EPs to children based on the date they joined the waiting list. It sometimes allocates a child out of order where there are exceptional circumstances to justify doing so, such as when a child or young person has a shortened life expectancy. It explained K did not have circumstances to justify allocating an EP more urgently, or to justify seeking the advice privately.

My findings

20. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Following Ms X’s request for an EHC assessment the Council should have made the decision whether to assess by early January 2023. The Council issued its decision quickly, in early December 2022, within the timescale required. At that point, K joined the waiting list for an EP assessment.
21. The Council then had to progress the assessment ‘in a timely manner’ so it could issue K’s final EHC plan within 20 weeks of the assessment request; by mid-April 2023. However, EHC plan assessments must include advice from an EP, which should be received within six weeks of the council requesting it. The EP did not complete their report until late March 2023.
22. The delay was due to the nationwide shortage of EPs. The Council has explained K did not have any circumstances that justified prioritising him above other children in the waiting list either in terms of early allocation or in terms of seeking a private report. The Council considered the relevant information so there was no fault in how it came to its decision.
23. However, the Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons why the EP report took longer than it should have, K’s wait to be seen by an EP meant the assessment took almost 32 weeks instead of the statutory timescale of 20. The delay of almost 3 months was fault. I am pleased to see the Council is making efforts to resolve the issue, as set out in paragraph 18. Because the Council has already taken suitable steps to decrease the wait time for EP advice, I have not made a further recommendation.
24. After the Council received the EP advice, there was no notable delay in it preparing the draft EHC plan, consulting with schools and finalising the plan in mid-June 2023.

Injustice

25. The delay in the EHC assessment caused Ms X uncertainty while awaiting the Council’s decision and meant her appeal right was delayed. Ms X has used that appeal right but, in the meantime, the Council must secure the special educational provision in the plan.
26. K’s EHC plan contains advice and special educational provision recommended by the private Occupational Therapist and Speech and Language Therapist reports Ms X commissioned. Ms X sent those reports to the Council in early and mid-April. If there had been no delay in this case, the Council would have issued K’s plan by mid-April, meaning it would have not included the advice Ms X supplied. I cannot confidently say what the special educational provision in K’s EHC plan would have been without that advice, so I have not made a recommendation to remedy any loss of provision.

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Agreed action

27. Within one month of the final decision the Council will take the following action.
• Apologise to Ms X for the frustration and uncertainty she experienced due to the delay in completing K’s EHC assessment.
• Pay Ms X £300 in recognition of that frustration and uncertainty. That equates to £100 per month of delay.
28. The Council will provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation. I have found fault and made recommendations for the Council to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman