Summary: There was fault by the Council in failing to complete an EHC needs assessment within statutory timescales due to a shortage of Educational Psychologists. The Council will apologise and make a symbolic payment. The Council is already carrying out service improvements to address the shortage of staff and backlog of cases. The complaint is upheld.

The complaint

1. Mr X complains about delay by the Council in completing an Education, Health and Care (EHC) needs assessment for his child. Mr X complains the Council has a long waiting list for educational psychology (EP) advice, has not considered seeking advice from the private sector for his child, and despite previous Ombudsman investigations on the same issue the problem continues. Mr X says his child is missing out on provision while waiting for an EHC plan.

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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 can consider whether there was fault in the way an organisation made a decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. 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 have considered information provided by Mr X and the Council including:
• Advice obtained
• Complaint correspondence
• Council’s response to my enquiries
• Other investigations by the Ombudsman about delays and the shortage of EP advice.
7. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
8. I have spoken to Mr X by telephone.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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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What I found

Relevant law and guidance

11. The Act and Regulations set out the way councils should assess the special educational needs and disabilities of children and young people. The Code provides guidance to councils about how to do this.
12. Councils must decide whether to carry out an EHC needs assessment within six weeks of receiving a parent request.
13. Regulation 6 sets out what professional advice a Council must seek. EP advice is a mandatory part of the assessment process.
14. Professionals should provide their advice within six weeks of a request from the Council to do so.
15. Once the Council has received all relevant advice it must decide whether an EHC plan is required. If so, it must issue a final plan within twenty weeks of receiving the request to assess.
16. 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

17. The Council told us it has a backlog of around 1000 EHC needs assessments awaiting an educational psychologist assessment. It explained how its EP Service had seen a 64% increase in referrals (since 2020) for EHC 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 EP 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.
18. 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 include:

• 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.

19. 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 will provide parents who are waiting with an update every three weeks.

Mr X’s child’s assessment

20. Mr X requested an assessment in 2022. The Council agreed to assess. The deadline for deciding whether a plan is required was March 2023, and any final plan was due by early April 2023.
21. This timescale has been exceeded. The Council has acknowledged this and apologised to Mr X.
22. The Council has told Mr X and the Ombudsman the delay is due to a national shortage of EP’s and despite efforts it has not been possible to recruit enough staff to clear the backlog.
23. Mr X asked whether:
• The Council could seek EP advice from the private sector, or
• The Council could refund his costs if he obtained a private EP report.
24. The Council told Mr X the Code says the educational psychologist who provides advice should normally be employed or commissioned by the Council. While a parent obtained report may be included as part of supporting evidence the Council could not comment on Mr X commissioning a specific expert, but it said it would provide a response to his request for the Council to commission a private EP itself.
25. The Council told Mr X in response to his complaint a nominated officer would agree a communications protocol with him to ensure he was kept updated. Mr X told us he was advised he would be updated every two weeks and he was not sent a leaflet. Updates however did not happen at either two, or three, week intervals. Mr X says he had no update for over two months.
26. The Council signposted Mr X to support that may be available from Early Help services.
27. The Council told me Mr X’s child has had advice from a specialist teacher and outreach services in the intervening period. I note this was in late 2022 and early 2023 only.
28. Mr X told us the Council adopted a policy that parents can commission private EP assessments and claim back the cost if certain criteria are met. Mr X says he had pressed for this sort of arrangement for months and is disappointed he was not informed of this until August.

Analysis

Fault

29. We expect councils to follow the statutory timescales set out in the law and Code which is statutory guidance.
30. The Council has accepted service failure in this case. It is required by law to decide whether to issue an EHC plan within sixteen weeks and produce a final EHC plan within twenty weeks. It has been exceeded by nearly seven months already.
31. We note the Council’s explanation of the problems facing its EP service. But the delay was not in line with the law and the Code and is service failure.
32. I also find the Council has not kept Mr X updated, and delayed providing a view whether it would consider using EPs in the private sector, despite promising to do so. This is fault.
33. The Ombudsman’s view is that it cannot require councils to use private EPs, but they have the power to do so. The guidance leaves this option open. However, there are also waiting lists in the private sector due to the national shortage. Where parents pay for private EP reports themselves, we cannot insist councils accept the findings of a private report, but where they do so, instead of obtaining their own, we would expect a council to reimburse the family. The Council has now published its own policy on reimbursing reports.

Injustice

34. I cannot make any recommendation for a loss of special educational provision caused by the delay because I cannot predict what the outcome of the EHC assessment will be. Whether provision has been lost by the delay is speculative.
35. The outcome of the EHC assessment should recognise Mr X’s child’s current needs, which would include any additional needs that have arisen due to delayed provision. Mr X will also have a right of appeal to the Tribunal if he disagrees with the outcome of the EHC needs assessment and considers more provision is required than the Council offers.
36. Mr X has been put to additional time and trouble, and his right of appeal has been delayed, which is itself an injustice.
37. The Council is taking steps to try to resolve the lack of EPs. It has recently approved significant financial investment to address these issues and resulting delays.
38. The Ombudsman is not a Regulator, our role is to investigate individual injustice and share learning from complaints. However, 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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Agreed action

39. To remedy the injustice resulting from the identified fault in this case the Council will, within four weeks of my final decision, take the following action:
• Apologise to Mr X for the faults identified in this decision statement.
• Pay Mr X a symbolic payment of £100 for every month, from April 2023, the completion of the EHC needs assessment is delayed. The Council should pay Mr X £700 within four weeks of my final decision and a second payment, to be calculated retrospectively once the Council completes the EHC needs assessment / issues a final plan.
• Contact Mr X to keep him updated in line with its communication protocol.
40. The Council will provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation. There was fault by the Council in failing to complete an EHC needs assessment within statutory timescales. I am satisfied the above agreed actions are a satisfactory remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman