Summary: Mrs B complained about the Council’s delays during the Education, Health and Care needs assessment process for her son. We find the Council was at fault because it took too long to issue the final Education, Health and Care plan. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mrs B complained about the Council’s delays during the Education, Health and Care (EHC) needs assessment process for her son. She says it has been highly stressful and her son is struggling without the support she feels he needs.

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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. 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.
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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. I considered information from Mrs B. I made written enquiries of the Council and considered information it sent in response.
7. Mrs B 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

Relevant law and statutory guidance

8. A child 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.
9. An EHC needs assessment is an assessment of the education, health and social needs of a child or young person. The timescale for an EHC needs assessment is a maximum of 20 weeks.
10. If an EHC needs assessment is requested, councils must issue the parents with a decision notice within six weeks of receiving the request. If the council decides an assessment is not necessary, it must provide reasons for this to the parent or young person and notify them of their right to appeal that decision to the SEND Tribunal.
11. Where the council agrees to complete an EHC needs assessment following an appeal, the maximum timescale for the council to issue the final EHC plan is 14 weeks from the date of the decision.

What happened

12. Mrs B’s son, C, has special educational needs.
13. Mrs B contacted the Council in May 2022 and asked for an EHC needs assessment for C. The Council responded six weeks later and refused to assess C.
14. Mrs B appealed the Council’s decision to the SEND Tribunal.
15. The Council conceded and decided to assess C. The SEND Tribunal issued its consent order on 6 December.
16. The Council sought advice from various professionals.
17. Mrs B emailed the Council in January 2023 and asked for an update. The Council responded and confirmed it was still waiting for advice. It said there was a national shortage of educational psychologists which was causing a delay in assessments. It said it was using locum educational psychologists and it was also actively recruiting more psychologists.
18. Mrs B complained to the Council in February. She said it failed to adhere to statutory timescales when dealing with the EHC needs assessment. She explained C had not attended school since October 2022. The Council responded and accepted it had failed to adhere to statutory timescales. It apologised for this.
19. Mrs B sent further chaser emails to the Council in March. She said the delays were exacerbating C’s mental and physical health.
20. The Council received advice from the educational psychologist in April. After reviewing the advice, it decided to issue C with an EHC plan. It sent the draft EHC plan on 11 May.
21. Mrs B sent in her amendments to the draft EHC plan on 5 June. The Council reviewed Mrs B’s amendments and issued C’s final EHC plan on 21 June. It left the name of the school placement blank but noted it would be a special school for children with autism.

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Analysis

22. The Council should have issued C’s EHC plan by 14 March 2023, which is fourteen weeks after it decided it would assess him. It instead issued his final EHC plan on 21 June 2023. This is three months longer than the law allows which is fault.
23. The delay in issuing C’s final EHC plan caused Mrs B frustration and uncertainty about C’s education. It also frustrated her right of appeal to the SEND Tribunal. It has also caused C an injustice in terms of lost special educational needs provision. The provision would have been in place three months sooner if the Council had not been at fault. The Council should take action to remedy the injustice to Mrs B and C.
24. We have highlighted issues with the Council’s delays during the EHC needs assessment process in other cases and we have recommended service improvements. The Council has been asked to provide evidence of the action it is taking to reduce waiting times and increase the capacity for more educational psychologists. We have also asked it to provide an action plan to address the delays. Therefore, I have not made any further service improvement recommendations.

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Agreed action

25. To address the injustice caused by fault, by 1 September 2023 the Council has agreed to:

• Apologise to Mrs B.
• Pay Mrs B £250.
• Pay Mrs B £1,900 for the loss of C’s special educational needs provision. We would suggest Mrs B’s uses this for C’s educational benefit.

26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. There was fault by the Council, which caused Mrs B and C an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman