Summary: Mrs B complained about delay by the Council in completing an assessment of her grandson C’s special educational needs and issuing an Education, Health and Care plan. We found fault by the Council meaning C missed out on approximately a term of extra support. The Council has agreed to pay Mrs B £450 for the benefit of C’s education and £150 to her.

The complaint

1. Mrs B complained that Surrey County Council (the Council), in respect of her grandson, C, delayed issuing an Education, Health and Care Plan (EHCP) and failed to communicate properly with her throughout the process. She also complained that the EHCP was not compliant with statutory guidance. C missed out on approximately a term of 1:1 support and Mrs B has been caused uncertainty, distress and inconvenience.

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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 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)

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How I considered this complaint

5. 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. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
6. 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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What I found

Special educational needs

7. 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. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
8. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
9. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHCPs. The guidance 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 EHCPs “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 EHCP 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 EHCP.

What happened

10. Mrs B’s grandson C needs extra support at school due to health conditions. On 21 July 2022 the Council received a request for an EHC needs assessment from C’s school. On 22 August 2022 the Council agreed to the assessment.
11. Mrs B sent two emails at the end of September/beginning of October 2022 chasing progress with the assessment and requesting the draft EHCP be issued. She emailed again on 19 October 2022 and then, as she had not received a response, she made a formal complaint on 25 October 2022.
12. The Council responded on 14 November 2022. It apologised for the lack of response to her emails and said the final EHCP was due on 7 December 2022. It said there were national delays in receiving Educational Psychologist (EP) reports due to a shortage of qualified EPs. The case had now been allocated to an EP who was due to visit C on 21 November 2022. It said it had received all the other advice and would remind staff of the Council’s policy to respond to communication within five working days.
13. The Council received the EP report on 2 December 2022. It issued a draft EHCP on 30 January 2023.
14. Mrs B commented on the draft on 10 February 2023 and requested changes. She said the recommended support was not quantified and the draft was full of errors. She chased the Council twice more and then complained again at the beginning of March 2023.
15. The Council issued the final EHCP on 10 March 2023. The Council met with Mrs B on 20 March 2023 to discuss her concerns. It apologised for her poor experience. It said the service was experiencing high demand but acknowledged that it should have kept Mrs B informed of the delays. It accepted it had not taken Mrs B’s comments into account when finalising the EHCP and said it would issue an amended version by the end of the month. It explained that the provision was unspecified to allow the school some flexibility in provision without needing to issue an amended EHCP. It said the school had currently agreed 17 hours. Mrs B did not think this was enough and the Council agreed to ask the school to review this.
16. The Council issued an amended final EHCP on 4 April 2023 and responded to Mrs B’s complaint on 14 April 2023. It agreed it had delayed in issuing the EHCP: it should have been issued by 7 December 2022 but was not issued until April 2023. It acknowledged that some of the delay was due to the national shortage of EPs and the Council’s difficulties in recruiting qualified staff. It upheld the complaint about delay and also apologised for delay in the complaints process. It said there had been no need to do two stage one responses and it could have started stage two sooner. It offered £100 for the complaints delay.
17. At the end of April 2023 the school provided updated information about provision: it had increased the support hours to 31 hours. The Council said it was providing 22 hours of the support to C with most of the direct teaching. It issued a further final EHCP on 4 May 2023 removing the word ‘draft’ from the document.

Educational Psychology service

18. The Council said in response to my enquiries that it is committed to completing assessments and delivering plans within the statutory framework, but it had seen a 64% increase in referrals for EHCPs. The situation had been exacerbated by a national shortage of EPs with the core service staffed at only 50% capacity. In response to the problems the Council said it had undertaken a priority recruitment programme to attract more EPs and had employed four more qualified staff since September 2022 along with 16 EP assistant posts. It had entered into a new commissioning arrangement in April 2023 which should significantly increase the EP capacity over the next year. Finally it has introduced a new policy for the summer term of 2023 providing guidance on when and how the Council will use private EP reports obtained by parents and when it will reimburse the costs of those reports.

Analysis

19. The Council delayed for three months in issuing the final EHCP, took a further month to incorporate Mrs B’s comments and another month to remove an error. I accept there were some delays due to the shortage of EPs which was outside the Council’s control.
20. But even after the report was provided it took a further three months to issue the EHCP. This was fault which meant C missed out on extra support for approximately a term. It is clear from the provision maps that the school was providing some support before the EHCP was issued but C missed out on the increased formalised hours provided in the EHCP.
21. The Council was also at fault for failing to communicate with Mrs B adequately throughout the period of delay.
22. Mrs B was caused distress and inconvenience having to chase up the Council on numerous occasions during this period. She also experienced uncertainty as to whether C would have progressed more quickly if the full provision had been in place a term earlier.

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Agreed action

23. The Council had already offered Mrs B £100 for the delay in the complaints process. I recommended, in addition to this, that within one month of the date of my final decision, the Council:
• apologises to Mrs B for the delay, pays her £450 for the benefit of C’s education and £150 for her distress and uncertainty.
24. As the Council has provided details of the comprehensive steps it has taken to improve the capacity of the EP service, I do not intend to make any service improvement recommendations.
25. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

26. I consider this is a proportionate way of putting right the injustice caused to Mrs B C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman