Summary: Mrs B complains the Council delayed its education, health and care needs assessment for her son, due to a delayed educational psychologist assessment. She also complains the Council refused to carry out an occupational therapist assessment. The Ombudsman upholds the complaint, due to the delay. The Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complains:
• the Council did not meet its legal deadline for making a decision on an Education, Health and Care (EHC) needs assessment for her son (whom I shall refer to as C);
• the Council Panel’s decision not to carry out an occupational therapist (OT) assessment was unreasonable, leading her to pay for a private assessment. This decision seemed even more unreasonable after the Council decided to ask the NHS to carry out an OT assessment.
2. Ms B says, due to the delay, C fell even further behind in his studies and his anxiety levels increased. She wanted the Council to complete its assessment and reimburse her for the cost of the OT report.

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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. 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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal.
8. 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)
9. 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 have and have not investigated

10. Mrs B complained to the Ombudsman in the Spring of 2023. I have considered the delay in the Council’s EHC needs assessment to the date it issued the final EHC plan in August 2023. Mrs B reported further delays, but these are outside the scope of this investigation.

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How I considered this complaint

11. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs B;
• made enquiries of the Council and considered its response;
• spoken to Mrs B;
• sent my draft decision to Mrs B and the Council and considered their responses.

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What I found

Relevant law and guidance

12. Children with special educational needs (SEN) may have an EHC plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
13. 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 Code is based on the Children and Families Act 2014 and the SEND 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; and
• 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.

14. As part of the EHC assessment councils must gather advice from relevant professionals. (SEND 2014 Regulations, Regulation 6(1)) This includes:

• the child’s education placement;
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an educational psychologist.

Those consulted have six weeks to provide the advice.

15. Once the required EHC needs assessment reports are in, if the council goes on to:
• refuse to issue an EHC plan, the law says it must complete the process within 16 weeks from the date it received the initial request for an assessment;
• agree to issue an EHC plan, the law says it must complete the process by 20 weeks from the date it received the initial request for an assessment.
16. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan. (SEND Regulations, Regulation 13(1)) 

What happened

Delays in educational psychology assessments in Surrey

17. The Council told us it has a backlog of around 1000 EHC needs assessment awaiting an educational psychologist assessment. It explained how its Educational Psychology Service had seen a 64% increase in referrals (since 2020) for Education, Health and Care 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 Educational Psychology Service staffing was at 50%. As a result, there had been high demand for assessments but a reduced capacity in the teams that undertake 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 included:

• 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.

C’s assessment

19. C was in primary school when, in August 2022, the Council agreed to assess his EHC needs. Mrs B advises C is on the autistic spectrum with sensory processing issues and that he has additional educational needs.
20. The 20-week deadline for completing the assessment passed on 31 October. Mrs B sought an update from the Council at the beginning of November 2022.
21. In early February 2023, Mrs B commissioned a private OT report. She says she did this as the Council had twice refused her request for it to commission one as part of its assessment. I can see from the Council’s records its caseworker sought advice within the Council, about whether it needed an OT report. The Council decided that it did not need one, given C’s particular circumstances.
22. Mrs B complained about the delay. The Council’s response at the beginning of March accepted fault.
23. At the beginning of June, the Council’s educational psychologist carried out their assessment.
24. The Council decided to refer C for an OT report from the NHS. It said the reason it did this was because the conclusions in the report Mrs B had commissioned were significantly different to its view about C’s OT needs (see paragraph 21). So it needed to get an NHS clinical view to inform the EHC assessment.
25. The Council issued its draft EHC plan in July. Mrs B and her family provided comments. They asked the Council to not finalise the plan until it had the report of from the NHS’s OT. They also named their preferred schools.
26. In early August the Council’s caseworker advised she would be finalising the EHC plan, as she wanted to ensure C’s placement for September 2023. But when the Council had received the OT report, she would be returning C’s case to the Council’s panel for consideration of whether any changes were needed to the EHC plan. The Council issued the final EHC plan on 3 August.
27. Mrs B complained to the Ombudsman in May. In response to my enquiries the Council repeated it apologies to Mrs B and her family. It offered a symbolic remedy of £500 to acknowledge the distress caused by the delay in completing the EHC assessment.

Was there fault by the Council?

28. We expect councils to follow the statutory timescales set out in the law and Code which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
29. The Council decided to carry out an EHC needs assessment in August 2022 and its SEND Team requested educational psychologist advice. The EHC plan was delayed largely because of a delay in the Council producing its educational psychologist’s report. The deadline for finalising the EHC plan was the 31 October 2022, but was not completed until the 3 August 2023 – a delay of around nine months.
30. I note the Council’s explanation of the problems facing its Educational Psychology Service. I also note its recovery plan. But the delay was not in line with the Code and, so, was service failure.
31. The other part of Mrs B’s complaint is about whether the Council should have commissioned an OT assessment as part of its EHC needs assessment. Our view is that decisions on what information a council needs for an assessment is a professional decision for the council, if it takes relevant information into account. This is because it is the body which will ultimately decide what should be in the EHC plan. The Council’s records show it did consider whether it needed an OT’s view and decided it did not. And the reason it later sought an NHS OT’s view was because of the contrary view from the report Mrs B commissioned. As the Council has provided cogent reasons for the decisions it made, the Ombudsman cannot question the merits of those decisions.

Did the fault cause an injustice?

32. As there is fault in this case, I have to consider the injustice caused to Mrs B and C and recommend a remedy. Mrs B and C have experienced uncertainty and distress.
33. I also want to acknowledge the proactive steps the Council is taking to try to resolve the lack of educational psychologists. It has recently approved significant financial investment to address these issues and resulting delays. So I am making no recommendations about service improvements.

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Agreed action

34. To remedy the injustice resulting from the identified fault in this case the Council should, within one month of my final decision, take the following action:
• apologise to Mrs B for the faults identified in this statement;
• agree to provide the update it has previously agreed to make;
• make Mrs B a symbolic payment of £1000 to acknowledge her and C’s distress, uncertainty and her time and trouble. This includes an extra symbolic amount to recognise the particular stresses due to the delay at a key stage in C’s academic career.
35. This remedy is a substitute for the remedy the Council has previously offered.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman