Summary: Mrs X complained the Council delayed completing an Education, Health and Care Needs Assessment for her son with particular reference to excessive delay in her son being assessed by an educational psychologist. Mrs X says she has suffered avoidable distress and uncertainty about the outcome. We have found fault by the Council but consider the agreed action of an apology and symbolic payment provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has delayed completing an Education, Health and Care (EHC) Needs Assessment for her son, W, and exceeded the statutory timescale for doing so. In particular, Mrs X says there was excessive delay in her son being assessed by an educational psychologist.
2. Mrs X says because of the Council’s fault, she has suffered avoidable distress and uncertainty about the outcome.

Back to top

The Ombudsman’s role and powers

3. 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)
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)

Back to top

How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the issues with Mrs X;
• made enquiries of the Council and considered the comments and documents it provided;
• considered our internal guidance statement about the national shortage of educational psychologists and our guidance on remedies;
• sent my draft decision to both the Council and Mrs X and invited their comments.

7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Background

8. 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);
• if the council decides, following an EHC needs assessment, not to issue an EHC plan, it must inform the child’s parent or the young person within a maximum of 16 weeks from the request; and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Key events

9. Mrs X requested an EHC plan for her son, W, at the end of June 2022. The Council wrote to Mrs X on 5 August to confirm it would complete a needs assessment. The Council confirmed on 11 August that it had sought the required professional advice including from an educational psychologist (EP).
10. The assessment by an EP took place on 19 April 2023 and their report was issued on 28 April 2023. The Council issued the draft EHC plan on 10 July 2023. At the time of the Council’s response to my enquiries in July 2023 the final EHC plan had not been issued.
11. These dates show that the Council made the decision to carry out a needs assessment within the six week statutory timeframe. However, the EP assessment was delayed and so the final report was not issued within the 20 week statutory timeframe. The Council should have issued the final EHC plan in November 2022.
12. In its complaint correspondence with Mrs X, the Council confirmed it would arrange an assessment within two months and provide a nominated officer to provide regular updates. The Council has confirmed a nominated officer was allocated to the case but accepts regular updates were not provided and the assessment was not completed within the proposed two month period. The Council apologised for the impact of its acknowledged errors and omissions.
13. The Council says the delay in this case was partly due to an increase in the number of requests for EHC needs assessments and there is a national shortage of EPs leading to a delay in the provision of psychological advice.
14. The Ombudsman has found fault with the Council in several cases recently due to delays in carrying out EHC plan processes because of the shortage of EPs. The Council has since taken the following action to resolve the amount of children on its waiting lists for EHC plans:
• set up a priority recruitment programme to attract more EP staff and other professionals who contribute to the needs assessment process;
• enhanced the pay scale for EPs, which has attracted additional EPs since September 2022;
• established assistant psychologist posts;
• provided additional funding to source external EPs; and
• entered into a new commissioning arrangement with effect from April 2023 which will provide EP capacity to complete an additional 700 provisions of psychological advice over a twelve month period.
15. The Council has also provided the Ombudsman with details of an accelerated recovery plan and confirmed a review of the SEN service to bring communication improvements and is writing to all parents every three weeks where needs assessments are overdue to provide an update.

My consideration

16. 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.
17. In this case the Council agreed to carry out the EHC needs assessment within the six week statutory timeframe but failed to complete the process within the 20 week timeframe. The Ombudsman recognises the steps taken by the Council to try to resolve the lack of EPs and resulting delays. We take the view the delays in this case amount to service failure. As the Council has already taken suitable steps to decrease the wait time for EP advice, I have not made further service improvement recommendations. However, I am recommending a remedy for Mrs X and W to recognise the injustice experienced because of the delay.

Back to top

Agreed action

18. To remedy the injustice to Mrs X and W as a result of the fault identified above, the Council should, within one month of my final decision, take the following action:
• provide a written apology to Mrs X and W;
• make Mrs X a symbolic payment of £800 to recognise the uncertainty and distress caused to her and W by the Council’s failure to issue the final EHC plan in line with statutory timescales (this remedy is broadly calculated at £100 per month from the date the Council should have issued the final EHC plan in November 2022 until the date it issued the draft plan in July 2023); and
• provide a further £100 per month to Mrs X to acknowledge the continued injustice caused by the delay in issuing W’s final EHC from the date of the draft EHC plan in July 2023 up to the date of the final EHC plan. The Council should make this payment to Mrs X within one month of the date of the final EHC plan.
19. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

20. I have completed my investigation as I consider the agreed action above provides a suitable remedy.

Back to top

Investigator's decision on behalf of the Ombudsman