Summary: Mrs X complains about delays in the Education, Health and Care assessment process for her son, Y. We have concluded our investigation having made a finding of fault. The Council have yet to make a decision on whether to issue Y with an EHCP and this is fault causing an injustice to Mrs X and Y. The Ombudsman is aware of a national shortage of Educational Psychologists that have impacted upon events described in this complaint, and the Council have agreed to our recommendations made in line with our standardised approach.

The complaint

1. The complaint summary
   Mrs X complains about delays in the Education, Health and Care assessment process for her son, Y. Mrs X says the Council has failed to undertaken a educational psychology, speech and language and occupational therapy assessment. Mrs X would like the Council to assess Y as soon as possible, and to provide a suitable remedy for the distress caused, and impact imposed on Y.

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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 liaised wit Mrs X and considered the information she provided. I also raised enquiries with the Council and considered the information it provided in response. I offered Mrs X and the Council the opportunity to comment on my draft decision and considered any comments that were submitted before making a final decision.

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What I found

Relevant law and guidance

7. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
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 Code is based on the Children and Families Act 2014 and the SEND 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; and
• 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.
9. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice.
10. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan (SEND Regulations, Regulation 13(1))
11. 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.

What happened

12. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.
13. In August 2022, Mrs X made a request for an EHC Needs Assessment for Y.
14. In September 2022, the Council agreed to assess Y as a priority, and identified that Y would need an Educational Psychology assessment.
15. In January 2023, Mrs X complained to the Council about delays by the Council in completing the EHC Needs Assessment, and not requesting advice from a Speech and Language Therapist or an Occupational Therapist.
16. The Council responded to Mrs X in February 2023, informing her that it required the input from the Educational Psychologist which it acknowledged it had not yet received. The Council informed Mrs X that it had made a referral in September 2022, and had expected to receive the report by October 2022. The Council also informed Mrs X about a national shortage of Educational Psychologists which was impacting upon the delay.
17. In the Council’s response to Mrs X, the Council also said that on review, it had decided to carry out a Speech and Language assessment, but that it had not decided to recommend a request for advice from an Occupational Therapist.
18. Later in February 2023, Mr X escalated her complaint to stage 2 of the Council’s complaints process. The Council responded to Mrs X’s complaint in March 2023, acknowledging that it had not made a decision on whether to issue Y with an EHCP by December 2022, as it should have. The Council again acknowledged that there was a national shortage of Educational Psychologist’s and that it was taking action to address the shortfall. The Council also said that the decision not to undertake an Occupational Therapy assessment could not be influenced by its complaint’s process, and signed posted Mrs X to where she could receive further advice and support.

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Analysis

Delay in making a decision on whether to issue Y an EHCP

19. The Council says the delay in deciding whether to issue an EHCP for Y was because of limited availability of Educational Psychologists. The Council says the lack of this resource available to it has caused a backlog in its production of EHC Plans.
20. In any event, the Council should have made a decision on whether to issue Y with an EHCP by December 2023, Failure to do so, is fault, and this has caused frustration and uncertainty for Y, Mrs X and her family.
21. The Council says that an Education Psychologist has been allocated for September 2023, and as such, a decision to issue Y with an EHCP should be taken shortly after.

Request for an Occupational Therapy assessment

22. The Council says that Y was referred to One Stop in December 2021, and advised that Y should be supported through the occupational therapy support for all universal provision.
23. The Council says that the advice to schools and parents is that if functional challenges continue for 3-6 months whilst accessing and implementing the support, then a referral with evidence can be made. The Council says this communication was sent in December 2021, and again in December 2022 when a request to assess was made. The Council says that no further referral or request for Occupational Therapy has been received since then.
24. It is not within the Ombudsman’s remit to question decisions made properly but instead for the Council to consider the weight of the evidence put before it and to make a decision on the suitability of what is and is not required. Although it is Mrs X’s view that an Occupational Therapy assessment should take place, we can not question the decision of the Council in this instance.

Educational Psychologists wider impact

25. In response to the lack of Educational Psychologists, the Council has increased its capacity by hiring Educational Psychologist assistants. The Council has also detailed that it will increase its staff body further in September 2023.
26. The Council has also put in place temporary policies allowing parents to commission private advice, which it promises to reimburse up to a set amount, and it has commissioned extra outsourcing advisers.
27. The Council has already evidenced the changes to its policies and extra hiring are having an increase in the timeliness of it completing the EHC Plan process.
28. I am satisfied the Council has identified the cause of its delays in producing EHC Plans and put in place suitable policies and measures to tackle this backlog. The Council’s actions are already showing an improvement in its timeliness in producing EHC Plans and at tackling its backlog. I do not consider further service improvements by the Ombudsman would add to the Council’s response to this matter.

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Agreed action

29. The Ombudsman is aware of the national shortages of Educational Psychologists and we have set out to standardise our approach to remedying injustice in light of this. In these circumstances, we recommend a payment of £100 for each month outside the statutory timescales which continues up to the point that Mrs X receives a right of appeal.
30. A decision to issue Y’s EHCP should have been made by December 2022. 9 months have passed since the Council should have made its decision, and using our standardised approach as described in paragraph 29, I have arrived at an amount of £900.
31. Therefore, the Council have agreed to complete the following actions in order to remedy the injustice described in this decision:
1. Within one month of the final decision, the Council should pay Mrs X £900 to acknowledge the distress, frustration and uncertainty caused to her, her family and Y by the Council’s failure to make a decision on whether to issue an EHCP within statutory timescales. This remedy is calculated at £100 per month from the date the Council should have made this decision in December 2022 until September 2023.
2. When the Council decides on whether to issue Y with an EHCP, it should pay Mrs X a further remedy to acknowledge injustice caused by any further ongoing delay. The Council should calculate the payment at £100 per month in line with the recommendation above. The Council should make this payment to Mrs X within one month of issuing its decision.

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Final decision

32. I have concluded my investigation having made a finding of fault. The Council have yet to make a decision on whether to issue Y with an EHCP and this is fault causing an injustice to Mrs X and Y. The Ombudsman is aware of a national shortage of Educational Psychologists that have impacted upon events described in this complaint, and the Council have agreed to our recommendations made in line with our standardised approach.

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Investigator's decision on behalf of the Ombudsman