Summary: Mrs X complained that the Council delayed in completing an education, health and care needs assessment for her daughter causing distress and anxiety. We found the Council was at fault in failing to meet statutory deadlines. It has agreed to make a payment to Ms X in recognition of the injustice caused.

The complaint

1. Mrs X complains that the Council delayed in completing an education, health and care needs assessment for her daughter causing distress and anxiety.

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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. 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)
4. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
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 have considered all the information provided by Mrs X, including the Council’s response to her complaint.
7. I have considered the current SEN Code of Practice.
8. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Legal and administrative background

Education, health and care plans (EHCPs)

9. A child with special educational needs may have an Education, Health and Care (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
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 EHCP’s. 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 EHCP’s “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.
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 (EP); and
• advice and information from any person requested by the parent or young person, where the council considers it reasonable.
12. Those consulted have a maximum of six weeks to provide the advice.

Key facts

13. Mrs X’s daughter, D, attends pre-school and is due to start primary school in September 2023.
14. On 4 November 2022 Mrs X requested an education, health and care needs assessment (EHCNA) for D.
15. On 16 December 2022 the Council agreed to complete an assessment. It then requested advice from all professionals involved with D and, in accordance with the law, allowed them six weeks to provide their advice. However, because of a severe lack of educational psychologists nationally, an EP was not available until 14 February 2023.
16. On 15 March 2023 Mrs X complained to the Council about the delay in completing the assessment. She was concerned that D would not be able to secure a place at her preferred school for September because of the delay.
17. The Council responded on 31 March explaining the reasons for the delay and apologising.
18. The Council issued D’s EHCP in May 2023. Fortunately, D was able to secure a place at her preferred school for September.

Analysis

19. In response to Mrs X’s complaint, the Council accepted there had been a delay in completing the assessment and explained this was caused by the national shortage of EPs.
20. I acknowledge the difficulties faced by the Council in obtaining EP advice which is a national problem. However, the Council has a legal duty to meet the statutory deadline which is absolute. The EHCNA process should take a maximum of 20 weeks. So, the Council should have issued D’s final EHCP by 24 March 2023. It did not do so until May 2023. This was fault.
21. Mrs X says she advised the Council that she could commission her own EP report to speed up the process but it declined this offer. In response to Mrs X’s complaint, the Council said there were occasions when EP’s had been commissioned by a child’s educational setting or privately by parents and such reports were considered in the statutory assessment. However, there were occasions where the Council considered it appropriate to seek further EP involvement.
22. While I note the Council’s position about independent EP’s, I find it should have given more consideration to taking up this option. The Council should attempt to source external EP reports to try and minimise delays given the shortage of its internal professionals.
23. The delay in the process caused Mrs X significant distress and uncertainty about whether her daughter would be able to attend her preferred school in September. She was also put to the inconvenience of chasing the Council.
24. However, I do not consider that D was disadvantaged by the delay because she is not due to transition to school until September 2023. The Council will provide the funding associated with her EHCP to her school when she starts. In the meantime, while she remains at pre-school, she is eligible for SEN funding through SEN premium funding which is an alternative funding stream for pre-school pupils with additional needs.
25. In response to Mrs X’s complaint, the Council apologised for the delay and said it had taken steps to ensure similar delays did not occur in future. These included retaining agency EP’s and offering virtual EP assessments to families which could often take place sooner as the Council could appoint EP’s from outside its area.
26. In a recent similar case (22010764) we recommended that the Council update us on the action it had taken to try and resolve the delays with the availability of EPs. So, I have not made any further service improvement recommendations. However, I have recommended a personal remedy for the injustice caused to Mrs X below.

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Agreed action

27. The Council has agreed that, within one month, it will pay Mrs X £200 in recognition of the distress, frustration and uncertainty caused by the delay in completing the assessment.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I uphold Mrs X’s complaint.
30. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman