Summary: Mrs B complained the Council delayed issuing her daughter D’s education, health and care plan. She said because of the Council’s actions, her daughter missed education, health and care provision. She said D has been out of education since December 2021 and she had to home educate her. We found fault with the Council for delay issuing the education, health and care plan. This was because of a shortage of Educational Psychologists. The delay caused Mrs B and her daughter distress, frustration and uncertainty. The Council has agreed to remedy the injustice caused to Mrs B and D by this delay by making Mrs B a financial payment.

The complaint

1. Mrs B complained the Council delayed issuing her daughter’s education, health and care plan. She said because of the Council’s actions, her daughter missed education, health and care provision. She said D has been out of education since December 2021 and she had to home educate her.

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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. 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)
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 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

6. I considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
7. Mrs B and the Council were given an opportunity to comment on a draft decision. I considered their comments before making a final decision.
    

What I found

Legislation and Guidance

8. Parents have a right to educate their children at home, this is called elective home education (Section 7, Education Act 1996). Parents who choose to educate a child at home rather than sending the child to school full-time take on financial responsibility for the cost of doing so, including the cost of any external support such as tutors, parent groups or part-time alternative provision (Department for Education, Elective home education: departmental guidance for local authorities, 2019).
9. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give council’s information about its duties.
10. The council must decide whether to proceed with an EHC needs assessment and must inform the child’s parent or the young person of their decision within a maximum of six weeks from receiving a request for an EHC needs assessment.
11. 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;
• 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.
12. When the Council request information as part of the EHC needs assessment process, those supplying the information must respond in a timely manner and within a maximum of six weeks from the date of the request.
13. If the Council decides to issue an EHC plan, it must send the finalised EHC plan as soon as practicable, and in any event within 20 weeks of the Council receiving a request for an EHC needs assessment.
14. 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. We cannot direct changes to the sections about education or name a different school. Only the SEND tribunal can do this.

Council complaint policy

15. The Council has a two-stage process.
16. Stage one: The complaint will be investigated by a senior member of staff. They will send a response within 20 working days.
17. Stage two: An independent senior manager will investigate the complaint. They will send a response within 20 working days.

What happened

18. This chronology includes key events in this case and does not cover everything that happened.
19. Mrs B said D stopped attending school in December 2021 because of anxiety, and she took her off the school roll in February 2022.
20. In February 2022, D’s school told the Council Mrs B was electing to home educate her. The Council sent Mrs B an elective home education information pack. It asked her to complete an online home education plan within 28 days.
21. Mrs B submitted an elective home education plan in February 2022. She said she had to deregister D from school because of anxiety. She said D had an initial assessment with CAMHS (Child and Adolescent Mental Health Services) in February 2022 and was scheduled to have an occupational therapy assessment. She said she wanted D to return to school as soon as possible once they knew how to support her. Mrs B explained her plan for home schooling D.
22. The Council spoke to Mrs B about her elective home education plan. She explained D struggled at school and refused to go. She said she thought D had an autism spectrum condition and she had contacted CAMHS. The Council was happy with Mrs B’s home education plan and closed her case.
23. D was assessed by a speech and language therapist (SALT) in March 2022 and an occupational therapist in April 2022.
24. In June 2022, Mrs B asked the Council to assess D for an EHC plan. Mrs B explained D had not attended school since January 2022 because of anxiety. She said she deregistered D from school because her mental health was suffering, and the school was not supportive. She said she wanted D to go to school but felt there was an underlying issue caused by school refusal and anxiety. Mrs B said she had home schooled D since February 2022. Mrs B enclosed the SALT and occupational therapy assessments.
25. The Council agreed to assess D for an EHC plan in July 2022. It told Mrs B it would complete D’s assessments by October 2022. The Council wrote to the following professionals for advice; educational psychology, community paediatrics, occupational therapy, community nursing, CAMHS, education inclusion and partnership team, and the initial contact team.
26. In October 2022, Mrs B complained to the Council because it had not completed its assessment of D. The Council responded in November 2022. It explained the delay was because D’s educational psychology assessment was outstanding. It advised it did not have enough Educational Psychologists to meet the demand for assessment reports. It said the educational psychology service was understaffed because of staff leaving and difficulties recruiting. It advised there was a national shortage of Educational Psychologists. It said it was working hard to increase its capacity and had recently secured support from agency Educational Psychologists. It said it would assign D an Educational Psychologist at the beginning of January 2023. Mrs B told the Council she was not happy with its complaint response. She asked it to consider her complaint the next stage of its complaint procedure.
27. An Educational Psychologist started an assessment of D in January 2023 and sent their report to the Council in February 2023.
28. The Council’s special educational needs panel considered D’s case in February 2023. It decided to issue an EHC plan.
29. The Council responded to Mrs B at stage two of its complaint procedure in February 2023. It apologised for the delays and upheld her complaint. It told her it had received advice from educational psychology and would issue a draft EHC plan shortly.
30. The Council issued a draft EHC plan in March 2023 and a final EHC plan in May 2023. The Council named a type of school in the plan, ‘a local maintained primary school or academy’. It said it was consulting with education settings. It told Mrs B about her right of appeal to the SEND tribunal in respect of the contents of sections of the EHC plan.
31. Mrs B submitted an appeal to the SEND tribunal. She appealed against the Council naming ‘a local maintained primary school or academy’ in D’s EHC plan and the education, health, and care provision.

Analysis

32. My findings are:
33. We expect councils to follow statutory timescales set out in the law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
34. Mrs B asked the Council to assess D for an EHC plan in June 2022. The Council should have completed its assessment in October 2022. The Council did not complete its assessment until February 2023. This delay was fault and meant the Council failed to issue D’s final EHC plan within statutory timescales.
35. Where a Council decides to issue an EHC plan, it must send the final plan within 20 weeks of it receiving a request for an EHC needs assessment. Therefore, the Council should have issued D’s final EHC plan in October 2022. As a result of the Council’s delay completing D’s assessment, the Council did not issue D’s final EHC plan until May 2023, a delay of 27 weeks. This delay was fault.
36. In its complaint responses, the Council accepted there was delay and explained this was because of a shortage of Educational Psychologists. In these circumstances, we consider the fault to be service failure.
37. Although, the Council accepted fault, it did not offer any remedy for the injustice caused by the delay. The Council has agreed to make a symbolic payment to recognise the distress, frustration and uncertainty caused to Mrs B and D by its delay.
38. The Council’s stage two complaint response was also delayed. It took the Council twice as long as it should have to respond to Mrs B. This delay was fault and caused her further frustration. The Council apologised for the delay, and I consider this a suitable remedy for the injustice caused by this fault.
39. Mrs B chose to educate D at home before the Council was aware D was experiencing difficulties at school. Therefore, I do not consider the Council’s actions influenced Mrs B’s decision to electively home educate D.

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Agreed action

40. The Council has agreed to the following recommendations.
41. Within one month of this final decision the Council will pay Mrs B £675 to acknowledge the distress, frustration and uncertainty caused to her and D by the Council’s failure to meet statutory timescales. This remedy is calculated at roughly £100 per month for each month of delay.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. The Council was at fault. This fault caused Mrs B and D injustice and the Council has agreed to take action to remedy that injustice. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman