Summary: Mrs D complained about the Council’s delays during the Education, Health and Care needs assessment process for her son. We find the Council was at fault for failing to meet statutory deadlines during the assessment. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mrs D complained about the Council’s delays during the Education, Health and Care (EHC) needs assessment process for her son, E.
2. Mrs D says E’s potential is being adversely affected by the delays. She also says it has caused distress to her and the wider family.

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The Ombudsman’s role and powers

3. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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How I considered this complaint

6. I considered information from Mrs D. I made written enquiries of the Council and considered information it sent in response.
7. Mrs D and the Council 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

Relevant law and statutory 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.
9. An EHC needs assessment is an assessment of the education, health and social needs of a child or young person. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs 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)). 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);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

11. Those consulted have a maximum of six weeks to provide the advice.

What happened

12. E has special educational needs. The Council received an application from E’s school in January 2023 to carry out an EHC needs assessment for him.
13. The Council reviewed the application and asked for more information from E’s school to understand his needs. After considering the further information, the Council agreed to carry out an assessment on 14 March.
14. Mrs D complained to the Council at the end of April about its delay in seeking advice from various professionals. She said it had failed to assign an EP to E’s case.
15. The Council responded to the complaint in May. It said due to a large number of EHC needs assessments and limited staffing capacity, it had not been possible to assign EPs within the statutory timeframe. It said it was addressing the staffing issues by recruiting newly qualified EPs and sponsoring EPs from abroad for work visas.
16. Mrs D emailed the Council at the end of June and provided it with a report from a private EP. She asked it to consider the report as part of the assessment process. The Council responded and said the report did not meet its guidelines. It said it lacked specificity and therefore it would commission its own EP.
17. Mrs D emailed the Council in July and asked for an update. The Council responded and said it hoped to offer E a virtual EP appointment during the summer holidays.
18. The EP has recently assessed E. The Council will review the advice and decide whether it will issue E with an EHC plan.

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Analysis

19. We expect councils to follow statutory timescales when dealing with a request for an EHC needs assessment. In this case, the Council has significantly exceeded the timescales. It should have decided whether it would issue E with an EHC plan by the beginning of May 2023. It still has not done so. This is a five-month delay.
20. I acknowledge the difficulties the Council has faced in getting EP advice which is a national problem. I also recognise the service improvements the Council has recently made in light of our recommendations in other similar cases and the steps it continues to take to resolve this issue. This includes recruiting newly qualified EPs, sponsoring EPs from abroad for work visas, engaging associate EPs and accepting private EP reports where it meets its requirements. However, the Council has a legal duty to meet the statutory deadline which is absolute. That it has not done so is a service failure. This service failure has caused Mrs D distress, frustration and uncertainty over E’s education. This injustice is ongoing.

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Agreed action

21. By 29 November 2023 the Council has agreed to:

• Apologise to Mrs D for the frustration and uncertainty caused.
• Pay Mrs D £500 to acknowledge the distress, frustration and uncertainty the delay has caused her by failing to complete the EHC needs assessment within statutory timescales. The remedy payment equates to £100 per month from the beginning of May 2023 (when the Council should have completed its assessment and decided whether to issue an EHC plan) until the beginning of October 2023. This is a five-month delay.
• Continue to pay Mrs D £100 per month until it either informs her it has decided not to issue an EHC plan for E or until it issues a final EHC plan for E. This is to acknowledge the continued injustice to Mrs D caused by the Council’s delay. The Council will make this payment within one month of the date it either informs Mrs D of its decision not to issue an EHC plan or when it has issued a final EHC plan.

22. The Council should provide us with evidence it has complied with the above actions.

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Final decision

23. There was fault by the Council, which has caused Mrs D an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman