Summary: The Council was at fault for delays in carrying out a child’s Education, Health and Care needs assessment and completing the Education, Health and Care plan. This caused injustice as the child would have received their special educational provision much sooner if there had not been delays. The Council agreed to apologise, make a payment for the loss of provision and distress caused and put in place additional Speech and Language Therapy sessions for the child.

The complaint

1. Ms X complains about the time taken by the Council to assess her son and produce an Education, Health and Care plan.

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What I have and have not investigated

2. I have investigated the time taken by the Council to assess Ms X’s son and produce an Education, Health and Care plan. I have not investigated any concerns Ms X has with the final plan as she would need to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), 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)

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How I considered this complaint

6. As part of this investigation, I considered the information provided by Ms X and the Council. I discussed the complaint over the telephone with Ms X.
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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What I found

Law and 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
9. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
10. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
11. 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.
12. 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 Educational Psychologist (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.
13. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
14. Those consulted have a maximum of six weeks to provide the advice.
15. The council should consider with the child’s parent and the parties listed the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47)

What happened

16. In March 2022, Ms X obtained a private educational psychology report and speech and language report in relation to her son, Y.
17. On 26 May 2022, Ms X asked the Council to carry out an EHC needs assessment for Y. The Council responded on 7 July 2022 and agreed to carry out the assessment. Around this time the Council obtained a Speech and Language Therapists (SALT) report for Y. This recommended three sessions of SALT per term for Y.
18. Ms X said she did not hear anything from the Council about Y’s EHC needs assessment and tried to chase an update over the coming months.
19. On 1 November 2022, Ms X made a formal complaint as Y’s EHC plan had not been completed yet.
20. The Council responded to Ms X’s complaint on 29 November 2022. The Council acknowledged the deadline to complete Y’s EHC plan was 13 October 2022, but said it was unable to do so as it could not get an educational psychology assessment for Y. The Council said there was a national shortage of educational psychologists and it was working to ensure Y’s advice was provided as soon as possible. The Council apologised to Ms X for the delays.
21. Ms X remained dissatisfied and asked the Council to consider her complaint further.
22. The Council responded to Ms X in January 2023. The Council acknowledged its first response did not provide Ms X with a timeframe for resolving her concerns about the delay in completing Y’s EHC plan. The Council agreed as a way forward to ask Ms X to provide the private educational psychologist report she obtained previously so the Council could consider whether it could use this advice. The Council agreed to contact Ms X in writing by 31 January 2023 to tell her whether it could use the private reports she had obtained for Y and give her a timeframe for completion of Y’s EHC plan.
23. Ms X sent the Council several emails in February 2023 and March 2023 chasing a response. On 23 April 2023, the Council told Ms X it could not use her private educational psychologist report as it did not mention recommended support objectives or arrangements for Y. The Council said it would get its senior educational psychologist to arrange discussions with Y’s school, Y and Ms X to see what arrangement Y needed.
24. On 17 May 2023, the Council sent Ms X a draft EHC plan for Y. Ms X provided comments on this promptly.
25. The Council sent Ms X Y’s final EHC plan on 22 June 2023. This specified extensive provision for Y, including the following:
• One to one intervention.
• Attention and listening groups of 30 minutes per week.
• Three listening and language sessions per week in small groups lasting between 20 and 30 minutes each.
• Three sessions per term delivered by a Speech and Language Therapist.
26. In response to a previous draft decision on this complaint the Council said it considered Y received the provision in his EHC plan from September 2022, despite the EHC plan not being finalised until June 2023. The Council said the school provided this provision. The Council provided a copy of a provision map showing what support Y was getting.
27. The Council provided evidence showing Y received SALT from September 2022 and these were broadly in line with the SALT report recommendations. However, Y missed two SALT sessions between September 2022 and July 2023.

Analysis

28. The Council reached its decision to carry out an EHC assessment within six weeks of Ms X’s request, which was within the statutory timescale and not fault. However, the Council did not send Ms X the final plan until 22 June 2023, eight months after it should have done. This was fault.
29. The Council recognised there was a delay in completing the EHC assessment and said this was due to delays in receiving advice from an educational psychologist. When it became clear to the Council that it would not receive the educational psychology report within the timescales for completing the EHC plan, it should have considered whether to commission a private assessment. The Council also could have at this stage considered whether the private assessment Ms X had obtained would be suitable, instead of waiting until January 2023 to consider this.
30. After providing its final complaint response, the Council agreed to consider whether it could use the private educational psychologist report Ms X obtained and update her by 31 January 2023. The Council did not do this and Ms X had to chase up a response. The Council finally confirmed it could not use the private report in late April 2023. This was fault.
31. Y should have had a finalised EHC plan by 13 October 2022. If there had not been delays with completing the EHC assessment and issuing the plan, I consider on balance Y would have started to receive the provision set out in his EHC plan much sooner. I acknowledge the Council put in place most of the SALT sessions from September 2022 as per Y’s EHC plan. However his EHC plan says someone from Y’s school must attend the SALT sessions so they could carry over these activities to school with Y. From the information I have, this rarely happened. Had the Council finalised the EHC plan within the statutory timeframes, school staff may have been more aware that they needed to attend SALT sessions with Y as this was specified in his EHC plan.
32. I also recognise the Council has provided a provision map showing some support Y was getting, however it is not clear when this support was put in place for Y. In addition, the support outlined in the provision map does not match up to the section F provision in the EHC plan. For example it is not clear whether Y was attending listening groups. The section F provision in Y’s EHC plan goes into much detail about how teachers and school staff should interact with Y and support and teach him. Without a finalised EHC plan I am not satisfied the school would have been able to put in place all of the support in section F of the EHC plan.
33. I consider a remedy payment to acknowledge the impact of that loss of provision is appropriate. In coming to an appropriate figure I have considered that Y did receive SALT sessions, however two were not put in place. I have also considered that school staff were not at most of these sessions as specified in his EHC plan.
34. Normally I would also recommend a service improvement remedy due to the issues the Council is facing in getting advice from educational psychologists. However, in other recent decisions we have recommended the Council take steps to increase its educational psychology capacity and reduce waiting times. It is therefore appropriate to allow the Council the opportunity to put this into place.
35. Ms X has also suffered injustice. Ms X spent time chasing up the Council to finalise the EHC plan. She also had to deal with the distress of Y not having a EHC plan in place when he should have. In addition, Ms X has had her appeal rights to challenge the content of the EHC plan delayed as a result of the time taken by the Council to complete the plan.

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Agreed action

36. Within one month of my final decision, the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Apologise to Ms X for the delay in completing Y’s EHC plan and for the delays in confirming the Council could not use her privately commissioned educational psychologist report.
• Pay Ms X £400 to acknowledge the distress she experienced in bringing this complaint and the frustration caused by the Council’s faults.
• Pay Ms X £1,500 to acknowledge the lost EHC provision Y would have received had his EHC plan been finalised within the statutory timeframe. In coming to this figure I have considered the Ombudsman’s guidance on remedies.
• Arrange to put in place the two SALT sessions Y missed.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation and found there was fault by the Council which caused injustice. The Council has agreed to carry out the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman