Summary: The Council was at fault because it delayed completing an assessment for an Education, Health and Care (EHC) plan for Mrs X’s son. The delays caused Mrs X avoidable distress because of the uncertainty of future provision for her son. The Council have agreed to pay Mrs X a financial remedy to properly recognise this injustice.

The complaint

1. Mrs X complained the Council delayed completing an EHC needs assessment, and it is now outside the statutory time limits allowed.
2. Mrs X said the Council’s actions have delayed any provision her son (Y) would have been due, or delayed any right to appeal the Council’s final decision if she is unhappy with it.
3. Mrs X said this caused her avoidable distress because of the uncertainty she experienced.

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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)
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 spoke to Mrs X, and I reviewed documents provided by Mrs X and the Council.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments I received before making a final decision.

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What I found

What should have happened

9. Once a parent asks the council for an EHCP assessment, the council has six weeks to say whether it will carry out an assessment.
10. If the council refuses, the parent has a right to appeal.
11. If the council decides to assess, it will gather information and then decide if the child needs an EHCP.
12. Where a council requests information as part of the assessment process, those supplying the information must respond in a timely manner and within a maximum of 6 weeks from the date of the request.
13. If the council decides the child needs an EHCP it must send a draft to the child’s parent and give them at least 15 days to comment and express a preference for a school.
14. The council must consult with any relevant school before naming it in the EHCP.
15. The council should amend the draft plan and issue the final EHCP as quickly as possible. The whole process from the request to assess to the final EHCP should not take longer than 20 weeks.
16. The council must also tell the parent of their right to appeal to the SEND Tribunal and the time limit for doing so.

What happened

17. In mid-September, Mrs X asked the Council to carry out an EHC needs assessment. In early October, the Council agreed it would carry out an assessment.
18. By November, Y had not been assessed by an Education Psychologist (EP) and Mrs X became concerned about delays in the process. Mrs X tried to contact Y’s caseworker at the Council but got no response.
19. In early December, Mrs X made a complaint. She told the Council she was concerned it would not meet the statutory timescales.
20. In its response, the Council accepted that an EP had not assessed Y and apologised. It told Mrs X the service area suffered with a shortage of EPs and that it had taken steps to address the shortages. These included;

• prioritising statutory assessment work over other work,
• advertising both locally and nationally to fill positions,
• extending the use of locum and associate EPs and,
• commissioning an external provider to support it with this work.

21. In late February 2023, Mrs X found an EP herself and they assessed Y. Mrs X escalated her complaint saying there if she was able to find an EP, why couldn’t the Council also find one.
22. In March, the Council responded to Mrs X’s stage two complaint. It accepted there had been fault in the delays completing the EHC needs assessment and reiterated its earlier apology.
23. The Council said in its response, it would have needed to issue a final EHCP by late January 2023, to have met the 20 week deadline.
24. The Council also said it could not use Mrs X’s private EP report to complete the assessment process, because the EP had not involved Y’s school during the assessment.
25. In its stage two response, the Council referred to our guidance, which says where time limits are likely to be exceeded, the Council should commission its own assessment from a private provider.
26. The Council did not show it considered this guidance in Mrs X’s case. However, it subsequently said to Mrs X it did not see this as an option.
27. The Council have not yet completed the EHC assessment process. However, since the time of Mrs X’s complaint to us, the Council had obtained an EP report and confirmed a panel was due to decide in late June.

My findings

28. The Council should have issued a final EHCP by late January 2023 to meet the 20 week statutory timescale, but it had still not issued one by June. This is late and is fault. The Council have already accepted this fault and apologised, and this is appropriate.
29. The Council is also aware of our expectation that it commissions private EPs to avoid missing timescales. However, it has not attempted to commission a private EP in this case. Nor has it provided a good reason for not doing so. This is fault. Mrs X spent unnecessary time sourcing an EP herself.
30. The collective fault caused Mrs X an injustice because of the avoidable inconvenience and distress she suffered. This was caused by the delays and uncertainty about future provision for Y. The Council have agreed to pay Mrs X a financial remedy to properly recognise this injustice.
31. We have recently made service improvement recommendations to the Council in two other cases about this subject matter as follows;
• take action in line with our expectations of sourcing private EPs to complete EHC needs assessment in time, and
• provide evidence it is increasing capacity of EPs to reduce waiting times.
32. Therefore, I do not intend to repeat further service improvement recommendations as these are already in progress.

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Agreed action

33. To remedy the injustice above, within one month of the date of my decision, the Council have agreed to pay Mrs X £500 for distress and uncertainty she experienced.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. There was fault.

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Investigator's decision on behalf of the Ombudsman