Summary: Mrs U complains the Council delayed issuing an EHC plan for her daughter. She says this has led to unnecessary time, trouble and distress. And her daughter has missed SEN provision. Mrs U also complains the Council’s communication with her was inadequate. The Ombudsman upholds the complaint. The Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Mrs U, complains the Council delayed issuing an EHC plan for her daughter, V. She says this has led to unnecessary time, trouble and distress. And V has missed SEN provision. Mrs U also complains the Council’s communication with her was inadequate.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’  and ‘service failure’. I have used the word fault to refer to these. 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)
3. 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 significant injustice, or that could cause injustice to others in the future 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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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)
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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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs U;
• made enquiries of the Council and considered its response;
• spoken to Mrs U;
• sent my draft decision to Mrs U and the Council and considered the responses I received.

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What I found

Relevant law and guidance

9. Children with special educational needs (SEN) may have an 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)
10. 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.

11. 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. The Code says the psychologist should normally be employed or commissioned by the local authority.

Those consulted have six weeks to provide the advice.

12. At the stage when a council refuses to issue an EHC plan, or when it issues a final EHC plan, parents and the young person have a right to appeal to the SEND Tribunal, if they disagree with the council’s decision. They have two months to lodge an appeal.

What happened

Delays in educational psychology assessments in Surrey

13. The Council told us it has a backlog of around 1000 EHC needs assessment awaiting an educational psychologist assessment. It explained how its Educational Psychology Service had seen a 64% increase in referrals (since 2020) for Education, Health and Care plans. It noted a national shortage of qualified educational psychologists and other key professionals who provide advice as part of the needs assessment process. The core Educational Psychology Service staffing was at 50%. As a result, there had been high demand for assessments but a reduced capacity in the teams that carry out assessment work.
14. The Council has explained how its Service had taken several actions to address the delays and improve adherence to the timescales in the Code. These included:

• prioritising statutory assessment work over other work;
• advertising both locally and nationally to fill positions;
• extending the use of locum and associate educational psychologists;
• commissioning an external provider to support this work;
• some temporary changes to its policy on accepting private educational psychologist assessments; and
• developing a Recovery Plan, with short-term and long-term goals.

15. The Council has recognised that, in teams with staffing vacancies, there have been gaps in communications with parents. It has produced an information leaflet for parents who are awaiting assessment, advising them of the reasons for the delays. It also says it would provide parents with an update every three weeks.

V’s assessment

16. V was in the reception year at her school. She is a child with SEN. In May 2022, Mrs U asked the Council to carry out a EHC needs assessment. In June the Council agreed to carry out an assessment. The Council sought advice, including from its educational psychologist.
17. The Council’s educational psychologist should have produced their report by 15 August 2022.
18. The statutory deadline of 20 weeks from the date Mrs U sought an assessment was 10 October 2022.
19. In March 2023 Mrs U complained. The Council’s responses upheld the complaint. It apologised for the delay, which it said was due to a national shortage of educational psychologists. It also apologised that it had not contacted her. It would ask a manager to contact her.
20. Mrs U complained to the Ombudsman. She noted that, contrary to what the Council’s complaint response said, its officer did not contact her with an update.
21. Mrs U advised us of continuing delays. In June the Council’s panel sought further advice. It did not issue a final EHC plan until 12 September.
22. Mrs U advises of continuing problems with communications with the Council. She says she has emailed its duty inbox twice since the final EHC plan to check about next steps. But she has had no response.

Analysis

23. We expect councils to follow the statutory timescales set out in the law and Code which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
24. The Council has accepted there was fault in this case. It is required by law to produce a final EHC plan within 20 weeks for receiving the request a needs assessment. It should have done this by 10 October 2022, but did not issue its final plan until 12 September 2023, a delay of around 11 months.
25. We note the Council’s explanation of the problems facing its Educational Psychology Service. But the delay was not in line with the Code and so was service failure.
26. I also uphold Mrs U’s complaint about poor communications. While I accept there may have been little news while the team was awaiting the educational psychologist assessment, the Council should have kept in touch with Mrs U regularly. And the Council’s complaint response advised of contact Mrs U says did not happen. She reports continuing problems with contacting the relevant Council team.
27. As there is fault in this case, I need to consider the injustice caused to Mrs U and V and recommend a remedy.
28. I cannot make any recommendation for a loss of SEN provision caused by the delay. To do so would stray into the SEND Tribunal’s remit in trying to decide what V’s provision should/would have been. That is because we cannot say an EHC needs assessment would have reached the same conclusions had it taken place months earlier.
29. If the delay has disadvantaged V’s SEN, we would expect the EHC plan provision to reflect this at the stage it was produced. If Mrs U’s view is it does not, then the plan is appealable to the SEND Tribunal.
30. 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 to address these issues and resulting delays.

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Agreed action

31. To remedy the injustice resulting from the identified fault in this case the Council has agreed to, within one month of my final decision, take the following action:
• apologise to Mrs U for the faults identified in this statement;
• pay Mrs U £1100 to acknowledge the distress, frustration and time and trouble caused to her and V by the Council’s failure to issue her final EHC plan in line with statutory timescales. This remedy is calculated at roughly £100 per month, from the date the Council should have issued the final EHC plan in October 2022, until the date it issued the draft plan in September 2023; and
• contact Mrs U as soon as possible to respond to the contacts she has made.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I uphold this complaint. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman