Summary: Mrs X complained the Council delayed in completing an Education, Health and Care Needs Assessment for her daughter. Mrs X says she suffered distress and uncertainty as a result and has been put to avoidable time and trouble in pursuing this matter. We found fault by the Council and consider the agreed action provides a suitable remedy.

The complaint

1. The complainant, who I shall refer to as Mrs X, complained the Council delayed in completing an Education, Health and Care (EHC) Needs Assessment for her daughter, Y, and exceeded the statutory timescales for doing so.
2. Mrs X says that because of the delay she has suffered distress and uncertainty about the outcome and has been caused avoidable time and trouble in pursuing this matter.

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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. 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 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

7. As part of my investigation, I have:

• considered the complaint and documents provided by Mrs X;
• discussed the complaint with Mrs X;
• made enquiries of the Council and considered the comments and documents it provided;
• considered our guidance on remedies;
• sent my draft decision to both the Council and Mrs X and considered the comment received.

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What I found

8. 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);
• if the council decides, following an EHC needs assessment, not to issue an EHC plan, it must inform the child’s parent or the young person within a maximum of 16 weeks from the request; and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

Key events

9. Mrs X requested an EHC Needs Assessment for her daughter, Y, on 17 October 2022.
10. The Council told Mrs X on 23 November 2022 that it would complete a Needs Assessment.
11. An assessment by an educational psychologist (EP) took place in early 2023. The EP report was finalised on 17 April 2023.
12. Mrs X complained to the Council about delay in completing Y’s EHC Needs Assessment on 25 April 2023.
13. The Council’s response to Mrs X complaint acknowledged it had exceeded the statutory deadlines for deciding Y’s EHC Needs Assessment and it apologised.
14. The Council explained the delay was partly caused by an increase in request for EHC needs assessments and a national shortage of EPs resulting in delays in obtaining psychological information. The Council has told the Ombudsman about the action it is taking to resolve delays of this nature. This includes a recruitment programme for more EPs, enhanced pay scales of EPs, additional funding to source external EPs and new commissioning arrangement that will provide capacity for EP advice on an extra 700 cases over a 12 month period.
15. The Council’s response also said Mrs X’s case worker would contact her and agree a communications protocol so she would know when to expect updates and an outcome for Y’s EHC Needs Assessment.
16. On 2 August 2023 the Council’s Education Governance Board considered Y’s case. It decided not issue Y with an EHC plan.
17. On 3 August 2023 Mrs X received a phone call from the Council saying Y would be issued with an EHC plan. However later the same day she received another phone call saying Y would not be issued with an EHC plan.
18. On 16 August 2023 the Council told Mrs X about its decision not to issue an EHC plan for Y.
19. In response to my enquiries the Council acknowledged that Mrs X did not receive the regular communication it promised to provide in its response to her complaint. It also accepted there was delay in the EPs report being considered by its Education Governance Panel.

Finding

20. The Council meet the statutory timeframe for deciding to carry out a EHC Needs Assessment.
21. However, the Council failed to meet the statutory timeframe for completing the EHC Needs Assessment. It should have informed Mrs X that it would not be issuing Y with an EHC plan by 6 February 2023. The Council told Mrs X it would not be issuing Y with an EHC plan on 16 August 2023. This is a delay of six months.
22. The Ombudsman is aware of the actions the Council is taking to resolve the lack of EPs that contributed to the identified delay. We consider the delays in this case amount to a service failure. As the Council is already taking action to improve its service, I will not be making any additional service improvement recommendations.
23. I note the EP report was available for consideration by the Council’s Educational Governance Panel from 17 April 2023. The panel did not consider Y’s case until 2 August. This is further evidence of delay by the Council.
24. The identified delay caused uncertainty and distress to Mrs X and delayed her appeal rights to challenge the Council’s decision not to issue Y with an EHC plan. For these reasons I consider Mrs X has been caused an injustice.
25. The Council failed to improve its communications with Mrs X as it agreed to do in its complaint response. This caused Mrs X confusion, uncertainty and put her to the time and trouble of pursuing this matter with the Council.

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Agreed action

26. To remedy the injustice caused to Mrs X because of the fault identified, the Council should, within one month of my final decision, take the following action:

• provide a written apology to Mrs X;
• make Mrs X a payment of £600 in recognition of the uncertainty and distress caused to her by the Council’s failure to meet the statutory timescales: and
• provide Mrs X with a further £100 to acknowledge the time and trouble caused to her by the Council’s failure to improve its communication with her.

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

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Final decision

28. I have completed my investigation and found there was fault by the Council which caused an injustice. The Council has agreed to carry out the above actions to remedy the injustice caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman