Summary: Miss X complained the Council caused delays during the Education, Health and Care needs assessment for her son. We found the Council delayed the assessment. The Council will apologise and make a payment to recognise the injustice caused by the delay.

The complaint

1. Miss X complained the Council caused delays throughout the Education, Health and Care (EHC) needs assessment for her son, C.
2. She says this has caused her son to lose out on the support he needs. She says this is affecting his ability to form friendships and learn.

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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 significant injustice, or that could cause injustice to others in the future 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)
5. 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

6. I have considered:
• The information provided by Miss X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. Miss X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan 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.
9. 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;
• 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.

10. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
11. Those consulted have a maximum of six weeks to provide the advice.

Key events

12. Miss X asked for a EHC needs assessment in late April 2022. The Council agreed to contact C’s school and the educational psychologist the school had involved to decide whether to carry out an assessment.
13. The Council received information from the school, Miss X and the educational psychologist’s report. It decided not to carry out an EHC needs assessment in mid-July 2022.
14. Miss X appealed the decision and the Council conceded that it should carry out an assessment in early September.
15. After agreeing to carry out an EHC needs assessment the Council took steps to gather information including asking an educational psychologist for a report. It contacted the educational psychologist who had previously issued a report for C in May 2022. It received an acknowledgement and was advised the timescales meant it would receive a response in late November.
16. The educational psychologist issued its report in early November. This referred to the first report issued in May but provided an update on C. It also provided details of the outcomes to be achieved and the suggested provision.
17. The Council issued a draft EHC plan in late March 2023. It issued the final EHC plan in mid-June.
18. Between November and March Miss X contacted the Council to chase it for its EHC needs assessment decision. She raised a complaint to the Council as well. The Council responded in March 2023. It accepted it had caused delays in the assessment process. It explained this had been caused by issues with capacity of the assessment team. It stated it was taking steps to recruit more staff and provide training to increase efficiency.

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Findings

19. The Council received the assessment request in early May 2022. It did not issue its decision to carry out an assessment until mid-July. The Council has accepted this is outside of the statutory six-week time frame.
20. The Council decided it was not going to carry out an assessment. This position changed in early September 2022 when the Council conceded at appeal. From this point the Council had 14 weeks to issue a final decision.
21. The statutory deadline was therefore mid-December. It issued the final decision significantly outside this deadline as it did not send it to Miss X until mid-June.
22. The availability of an educational psychologist caused a small part of this delay. However, the report was available in early November. I have seen no justification for the time taken in issuing a final decision between early November 2022 and June 2023. This is fault.
23. The Council accepted this fault and has taken steps to address the cause of this service failing. It has sought to recruit more staff to prevent further delays. This is an appropriate remedy to prevent reoccurrence in the future.
24. The delay in issuing a final decision has left Miss X worried and anxious that her son wasn’t receiving the support he needed. She was concerned that this would also impact his ability to form friendships during the start of his education. This injustice warrants recognition.

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Agreed action

25. Within one month of the final decision the Council will:
• Apologise to Miss X for the distress caused by its delay in carrying out its assessment and in issuing a final decision outside of the statutory timescales.
• Pay Miss X £600 for the injustice caused by the delay in issuing a final decision. This is equivalent to £100 per month.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I have completed my investigation. I have found fault leading to injustice. The Council will take action to address the injustice caused.

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Investigator's decision on behalf of the Ombudsman