Summary: Mrs X complained the Council delayed assessing her child, Y, for an Education, Health and Care Plan (EHC Plan). We found the Council was at fault. It delayed conducting an assessment with an Educational Psychologist which as a result, has not decided whether to issue Y an EHC Plan. The Council is currently making service improvements to prevent a recurrence of fault. However, the Council has agreed to make Mrs X a symbolic payment to acknowledge the distress, frustration and uncertainty the matter has caused her. It will also make a further payment to Mrs X to acknowledge further delay once it has made a decision or issued a final EHC Plan to Y.

The complaint

1. Mrs X complained the Council delayed assessing her child, Y, for an Education, Health and Care Plan (EHC Plan). Mrs X said it has caused her distress, frustration and uncertainty. It has also affected Y’s social and learning development. She wants the Council to complete its assessment without further delay.

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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. 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.
5. 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)
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. I considered the information Mrs X provided.
9. I considered the information the Council provided.
10. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

11. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

The assessment process for an EHC Plan

12. 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; 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.
13. Following an assessment, if a council decides not to issue an EHC Plan, it must notify the parents/carers within 16 weeks of the date it agreed to complete an assessment.
14. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist. It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.

Appeal rights

15. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

What happened

16. Mrs X’s child, Y, attends a mainstream primary school. Y struggles with their education at school and is not currently attending school. Y is due to transition into secondary school in September 2023. Mrs X wants Y to have more support at school and so asked the Council to assess Y for an EHC Plan. Towards the end of December 2022, the Council agreed to complete an assessment.
17. By the end of March 2023, Mrs X was still waiting for the Council to allocate an Educational Psychologist to complete an assessment with Y. The Council told Mrs X there was a shortage of Educational Psychologists within the Council which was the reason for the delay. Mrs X asked the Council to consider allocating a private Educational Psychologist to complete the assessment however, the Council did not respond to her. Later, Mrs X complained to the Council and said it had delayed completing the assessment in line with statutory timescales. Mrs X said she was concerned Y would not have support in place for when they started secondary school.
18. The Council responded to Mrs X’s complaint and said:
• the delay was due to an increased demand of EHC Plan assessments and a national shortage of Educational Psychologists;
• it was unable to hire a private Educational Psychologist for Y’s assessment as it was already using all resources available to secure private Educational Psychologists alongside Council employed Educational Psychologists; and
• it was currently making changes to its team which involved increasing capacity to process assessment requests for EHC Plans however, at the moment, it was still not able to respond to the rate of increased requests.

The Council apologised to Mrs X and told her it would keep her updated with any progress.

19. Mrs X remained unhappy and complained to us. Mrs X told us the Council had allocated an Educational Psychologist to carry out the assessment. She said they had carried out the assessment towards the end of May 2023. Mrs X told us at the beginning of July 2023, the Council had still not decided whether to issue Y with an EHC Plan or not.

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Findings

20. We expect councils to follow statutory timescales as set out in paragraphs 12 to 14 of this decision statement. We are likely to find fault where there are significant breaches of those timescales.
21. Towards the end of December 2022, the Council agreed to assess Y for an EHC Plan. Once the Council agreed to assess Y, it should have done so within a timely manner. The Council’s Educational Psychologist did not carry out the assessment with Y until the end of May 2023 which was a significant delay. I recognise the delay was due to a combination of an increased demand for EHC Plan assessments and a shortage of Educational Psychologists but the Council was still at fault.
22. Subsequently, the Council has still not decided whether it will issue Y an EHC Plan or not. This is fault and not in line with statutory timescales. The Council should have told Mrs X by mid-April 2023 whether it was going to issue Y an EHC Plan or not.
23. The Council’s delay in completing the assessment has caused Mrs X distress, frustration and uncertainty. I have made a recommendation to the Council to acknowledge the injustice caused to Mrs X.
24. Once the Council has issued a final EHC Plan for Y, Mrs X will have a right of appeal to the SEND Tribunal if she disagrees with the special educational needs, provision or placement specified in the EHC Plan. As a result, I have not recommended a payment for any potential loss or delay in special educational provision to Y because the Educational Psychologist assessment and support set out in any final EHC Plan should identify the special educational support Y now needs. If she feels it does not, then she has a right to appeal to the SEND Tribunal.
25. I recognise the Council has made service improvements to respond to the increased demand of EHC Plan assessments and to manage the shortage of Educational Psychologists. I am satisfied with this service improvement and so will not recommend anything further. However, I will ask the Council to provide me with some information in relation to this service improvement.

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Agreed action

26. Within one month of the final decision, the Council has agreed it will pay Mrs X £300 to acknowledge the distress, frustration and uncertainty the delay has caused her by failing to complete an assessment of Y’s EHC Plan within statutory timescales. The remedy payment equates to £100 per month from April 2023, when the Council should have completed its assessment and told Mrs X if it decided not to issue an EHC Plan until July 2023, when Mrs X told us the Council had still not made a decision. This is a three-month delay.
27. The Council has agreed it will also continue to pay Mrs X £100 per month until it either informs her it has decided not to issue an EHC Plan to Y or until it issues a final EHC Plan to Y. This is to acknowledge the continued injustice to Mrs X caused by the Council’s delay. The Council will make this payment within one month of the date it either informs Mrs X of its decision not to issue an EHC Plan or when it has issued a final EHC Plan.
28. The Council will provide us with evidence it has complied with the above actions.
29. In addition, within one month of the final decision, the Council will provide us with an action plan of the service improvements it told Mrs X it was making. The action plan should explain what date the Council intends to make the service improvements by. If the Council has already made service improvements to prevent a recurrence of fault, it will provide us with evidence of this.

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Final decision

30. I have now completed my investigation. The Council is at fault. It has agreed to the recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman