Summary: There was delay in completing the Education Health and Care (EHC) needs assessment process for Y which caused avoidable distress. The Council will commission an educational psychologist’s advice and issue a decision on whether or not to issue Y’s EHC plan. If the decision is positive, it needs to complete the process of issuing Y’s EHC plan. It will also apologise and make a payment to reflect avoidable distress.

The complaint

1. Ms X complained the Council has not completed an educational psychology report for her child Y.
2. Ms X said this caused her and Y avoidable distress and without the report, they cannot move to the next stage of the Education, Health and Care needs assessment and plan process. It caused avoidable uncertainty about whether Y’s special educational needs will be met and Ms X feels like they are in limbo.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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)
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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How I considered this complaint

7. I considered Ms X’s complaint to us and the Council’s responses to her complaint. I discussed the complaint with Ms X.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

9. On receiving a request for an Education, Health and Care (EHC) needs assessment, a council must determine whether an assessment is necessary. (Children and Families Act 2015, section 36)
10. As part of an EHC needs assessment, a council must seek advice from the parent, head teacher of the school and from other professionals including an educational psychologist (EP) (Regulation 6(1) SEND Regulations 2014))
11. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the SEND 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:

• 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;
• 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 (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan. (Paragraphs 9.41 and 9.53 SEND Code)

12. Statutory Guidance says an EP should normally be employed or commissioned by the local authority. (Paragraph 9.49, SEND Code)
13. The council must prepare an EHC plan if, after a needs assessment, it is necessary for special educational provision to be made. (Children and Families Act, section 37)
14. If a council decides special educational provision by an EHC plan is not necessary following an EHC needs assessment, it must tell the parent within 16 weeks of the request for an EHC needs assessment. (Regulation 10(1) SEND Regulations 2104)

What happened

15. I have taken the key events from the Council’s complaint response and from my discussion with Ms X.
16. Y’s school requested an EHC needs assessment on 20 July 2022.
17. The Council decided not to carry out an EHC needs assessment on 24 August. Ms X requested mediation. On 16 September, before mediation, the Council changed its mind and agreed to carry out an EHC needs assessment. It has not completed an EHC needs assessment at the time of this statement.
18. Ms X complained to the Council at the end of March 2023 about the matters she has raised with us. The Council decided to treat the complaint as a second stage complaint due to its seriousness. The Council responded in the middle of April saying it accepted the 20-week statutory timescale for issuing an EHC plan had not been met. It said this was due to a national shortage of EPs and difficulty recruiting enough qualified staff. It said it would nominate an officer to keep Ms X updated as to progress.
19. In response to our enquiries, the Council acknowledged the delay and offered:
• A further apology
• A payment of £200 to reflect the time and trouble and distress.
20. The Council also said if the outcome of the EHC needs assessment was to issue an EHC plan, it would consider the impact of the delay – namely whether any special educational provision has been missed and if so, it would consider catch-up provision.
21. The Council told us the EP service is running at 50% capacity which is affecting the service. And there has been an increase in referrals since 2020. It was:
• Recruiting staff with enhanced pay
• Employing assistant EPs
• Commissioning additional EPs to complete 700 reports for the next year
• Introducing a temporary policy for summer 2023 setting out how private EP reports would be considered and the conditions under which a parent would be reimbursed.

Was there fault?

22. We expect councils to follow the timescales in the SEND Regulations and Code and we measure their performance accordingly when assessing fault. There has been delay by the Council which is continuing and is fault. Ms X should have had a decision on whether the Council would issue an EHC plan within 16 weeks of the school’s request for an assessment, so by the middle of November to be in line with Regulation 6(1) of the SEND Regulations. If the decision was to issue an EHC plan, the Council should have gone on to complete the process by issuing a draft plan for comment and then a final plan within 20 weeks to be in line with the SEND Code of Practice (see paragraph 11). In that case, Y’s final plan should have been available and any special educational provision on that plan in place by the middle of December 2022. This delay is continuing and has caused avoidable distress and uncertainty about Y’s entitlement to special educational provision secured by an EHC plan.

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Agreed action

23. Within one month of my final decision (so by 21 July) the Council will:
• Ensure there is EP advice available for Y (by using a commissioned or an in-house EP) and a decision on whether to issue Y with an EHC plan.
• If the decision is not to issue a plan, Ms X will need to go through the mediation and appeal process.
• If the decision is to issue a plan, the Council should also issue Y’s draft EHC plan.
• Apologise again for the avoidable distress to her and Y and make a payment of £200 to reflect this.
24. If the decision is to issue an EHC plan, the Council should issue that final plan within two months of my final decision (by 21 August) and consider whether a payment for missed special educational provision or catch-up provision is necessary. It should consider our new Guidance on Remedies for appropriate amounts.
25. The Council should provide us with evidence it has complied with the above actions.
26. I have not made any recommendations for service improvements because I am satisfied the Council is addressing the root cause of the delay by securing additional EP capacity.
27. Ms X may need to use the Council’s complaint process again and then complain to us again if she is not satisfied with any remedy the Council offers for any missed special educational provision. We would generally expect her to appeal any decision with statutory appeal rights to the SEND Tribunal.

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Final decision

28. There was delay in completing the EHC needs assessment process for Y which has caused avoidable distress. The Council will commission an educational psychologist’s advice and issue a decision about whether to issue Y with an EHC plan. If the decision is positive, it will complete the process of issuing Y’s EHC plan. It will also apologise and make a payment to reflect avoidable distress.
29. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman