Summary: Mr X complained the Council failed to complete the assessment of his son’s education, health and care needs within the statutory deadline and that this delay is still ongoing. This has caused distress, uncertainty and possible lost provision. The Council accepts it is at fault for this failure and continuing delay. A suitable remedy is agreed.

The complaint

1. Mr X complains the Council has failed to complete the assessment of his son’s education, health and care (EHC) needs within the statutory deadline.
2. Mr X says this has caused distress, uncertainty and possible lost provision.

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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. 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)
5. 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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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Timescales and process for EHC assessment

7. 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.

Key facts

8. Mr X says that teachers at his son’s school advised that an EHC plan should be sought for his son. The request for a needs assessment was made to the Council. On 26 September 2022, the Council agreed to undertake an ECH assessment.
9. The Council says that if the outcome of the needs assessment was to decline to issue an EHC plan then this should have been communicated to Mr X by 21 December 2022. Mr X would then have been able to appeal the refusal decision.
10. It goes on to say that if the outcome of the needs assessment was to issue an EHC plan then the final plan should have been sent to Mr X by 19 January 2023. Mr X would then have been able to appeal if he disagreed with the contents of the plan.
11. To date the Council has failed to complete the needs assessment for Mr X’s son or to make a decision on whether to issue an EHC plan. It says this is due to a shortage of Educational Psychologists and the failure to successfully recruit more.
12. Mr X complained to the Council and it replied on 14 March 2023 at stage two of its complaints procedure due to the significant concerns raised. It accepted the statutory timescales for making a decision had been exceeded and so upheld the complaint. It agreed that within 14 working days it would nominate an officer to keep Mr X updated on the progress of the needs assessment and would agree a communications protocol regarding the frequency of updates.
13. The Council wrote to Mr X giving the name of the officer dealing with the case. The officer also wrote to Mr X saying she would provide monthly updates on the fourth of each month. Mr X responded saying one update per month was not sufficient and asked for a weekly update.
14. The information provided by the Council in response to my enquiries includes an email from the case officer acknowledging she has not provided the monthly updates.

Analysis

15. The Council has accepted there is fault in this case. It is required by law to produce a final EHC plan within 20 weeks for receiving the request for a needs assessment. It should have done this by 19 January but to date the plan is still outstanding. In response to my enquiries the Council said it had a backlog of 1000 cases and that it was unable to give any indication of when the needs assessment would be completed.
16. As there is fault in this case, we have to consider the injustice caused to Mr X and his son and provide a remedy. As the needs assessment has not yet been completed we do not know what, if any, needs will be met in a plan and so cannot provide a remedy for lost provision. However, Mr X and his son have experienced uncertainty and distress and this is ongoing. In making my recommendation, I am taking into account the Council is unable to give any timescale of when this matter will be resolved. Mr X has also been put to time and trouble pursuing this matter.
17. I also want to acknowledge the proactive steps the Council is taking to try to resolve the lack of educational psychologists. It has recently approved significant financial investment over three years to address these issues and resulting delays.

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Agreed action

18. To remedy the injustice resulting from the identified fault in this case the Council will, within one month of my final decision, take the following action:
• Apologise to Mr X;
• Make Mr X a symbolic payment of £500 to acknowledge his distress, uncertainty and time and trouble; and
• To acknowledge the ongoing uncertainty and distress, make Mr X a symbolic payment of £100 for every month until the final plan is issued. We accept that this payment will be calculated and paid retrospectively once the decision about the EHC plan is made rather than in monthly instalments.
19. The Council should provide us with evidence it has complied with the above actions.

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Final decision

20. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman