Summary: Ms X complained the Council delayed completing her child, P’s, Education, Health and Care (EHC) plan. The Council was at fault for delay caused by a shortage of Educational Psychologists. This means the Council has not yet issued P’s final EHC plan. The Council will apologise and pay Ms X £200 to recognise the frustration and uncertainty the delays had on her. It will make an ongoing payment of £100 per month until it issues P’s final EHC plan.

The complaint

1. Ms X complained the Council delayed completing an EHC assessment for her child, P. Ms X said the delay meant P did not receive the provision they needed. She said this caused her unnecessary frustration.

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The Ombudsman’s role and powers

2. 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)
3. 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. 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 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

6. I have considered:
• all the information Ms X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
7. Ms 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

Relevant law and guidance

Education, Health and Care plan (EHC) plan

8. Children 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. 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 assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC plan after an assessment, it should prepare a draft EHC plan and send it to schools that may be able to accept the child or young person and meet their needs. Schools should respond to the consultations within fifteen calendar days; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC plan.
10. There is a right of appeal to the SEND Tribunal about the educational provision and placement named in a child’s EHC plan. This appeal right is only engaged once the final EHC plan has been issued.

What happened

11. Ms X has a child, P, who attends a mainstream school. In early February 2023, P’s school asked the Council to carry out an EHC assessment. Six weeks later, the Council agreed and placed P on the waiting list for Educational Psychology advice.
12. Ms X was concerned about the wait time for P to be assessed by an EP, so she commissioned a report privately. She asked the Council to use that report instead of waiting for a Council EP to become available. The Council said P would need to wait to be seen by a Council EP, who would consider if they could use any information from the private report.
13. The EP considered Ms X’s private report in early August and confirmed it was of good quality and could be relied upon. The EP therefore did not complete a separate assessment with P.
14. The Council decided P did need an EHC plan. As of mid-August, it has not issued a draft plan.

Educational Psychologists

15. The Council has told us it is being affected by the nationwide shortage of EPs. It receives around 3,500 requests for EHC assessments a year and currently has 620 children and young people waiting to see an EP as part of their EHC plan assessment. This is an issue for many councils as the number of EPs has declined and the number of EHC assessment requests has increased dramatically.
16. On similar recent Ombudsman cases, the Council told us that to manage the demand it:
• is constantly looking to hire new EPs and has successfully hired some;
• has introduced overtime;
• re-designed its department;
• uses independent EPs to act as “Associate EPs”, who produce advice to the standard required by the Council; and
• offered virtual assessments to reduce how long each assessment takes.
17. The Council allocates EPs to children based on the date they joined the waiting list. Where parents obtain a private report, the Council’s own EPs and Associate EPs will consider that information when they are allocated to a child. The Council does not accept private reports as the only EP advice for the purposes of a child’s EHC assessment. If the EP or Associate EP feel the report is of sufficient quality, the Council will not require a new assessment. The Council said its system makes sure all the advice is of high quality and avoids penalising parents who cannot afford to commission private reports.

My findings

18. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Following Ms X’s request for an EHC assessment the Council should have made the decision whether to assess within six weeks. It did so, at which point, P joined the waiting list for an EP assessment.
19. The Council then had to progress the assessment ‘in a timely manner’ so it could issue P’s final EHC plan within 20 weeks of the assessment request; by late June. However, EHC plan assessments must include advice from an EP, which should be received within six weeks of the council requesting it. The EP did not provide their advice (in the form of confirming the suitability of Ms X’s private report) until early August 2023.
20. The delay was due to the nationwide shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons why the EP advice took longer than it should have, P’s wait to be seen by an EP meant their EHC assessment has taken 28 weeks so far, instead of the statutory timescale of 20. The Council has not yet issued the draft plan, after which it must consult with schools and seek Ms X’s comments before it issues the final plan. It is therefore likely the Council will not be able to issue the final plan for some weeks.
21. I am pleased to see the Council is making efforts to resolve the issue, as set out in paragraph 16. Because the Council has already taken suitable steps to decrease the wait time for EP advice, I have not made a further recommendation.
22. Ms X feels the Council should have accepted her private report, to shorten the wait time. However, the Council does not accept private reports as the sole EP advice for a child’s EHC assessment. That is its decision to make, to ensure all advice meets the same quality standards and that all children are treated fairly, regardless of their parents’ ability to commission private reports. The Council was not at fault.

Injustice

23. The delay in the EHC assessment caused Ms X uncertainty and frustration while she awaited P’s final EHC plan and means her appeal right is delayed. However, without a final EHC plan, I cannot say whether the delay meant P lost out on special educational provision.

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Agreed action

24. Within one month of the final decision the Council will take the following action.
• Apologise to Ms X for the frustration and uncertainty she experienced due to the delay in completing P’s EHC assessment.
• Pay Ms X £200 in recognition of that frustration and uncertainty. That equates to £100 per month of delay.
• The Council will also continue to pay Ms X £100 per month until it issues P’s final EHC plan. This is to acknowledge the continued injustice Ms X is experiencing caused by the Council’s delay. The Council will make this payment within one month of the date it issues the EHC Plan.
25. The Council will provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed this investigation. I have found fault and made recommendations for the Council to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman