Summary: Mr X complains the Council delayed completing an Education, Health and Care needs assessment for his daughter. He also complains the Council and its staff failed to demonstrate basic standards of professionalism and courtesy when dealing with him and his family. Mr X says this caused him avoidable distress, uncertainty, financial loss and time and trouble. Based on the information provided, we have found fault by the Council. We recommend it reimburse him the full cost of getting a private Educational Psychologist report for his daughter and make him a symbolic payment.

The complaint

1. The complainant, whom I shall call Mr X, complains the Council failed to adhere to the Special Educational Needs and Disability Regulations 2014 when considering an EHC needs assessment for his daughter, Y.
2. Mr X also complains the Council and its staff obstructed and delayed the EHC needs assessment and failed to demonstrate basic standards of professionalism and courtesy when dealing with him and his family.
3. Mr X says because of the Council’s fault he and his family have been caused stress, distress, financial loss and been put to avoidable time and trouble in pursuing this matter.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. As part of the investigation, I have:

• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• made enquiries of the Council and considered its response and documents it provided;
• considered our internal guidance about the national shortage of educational psychologists and our guidance on remedies;
• sent my draft decision to Mr X and the Council and invited their comments. In response I sent both parties a revised draft decision. This draft represents a second revised draft decision.

8. 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 found

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);
• 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.
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.

The Council’s Local Offer

11. The Council’s Local Offer sets out the role of Case Officers. It says:

• Case Officers have regular supervision with their line manager where they receive specific guidance and training on their case work.
• A Case Officer’s line manager oversees their case work to ensure urgent works is covered when one of their colleagues is absent. They will decide how to cover the case work dependent on the length of time a Case Officer is away from work and whether this is planned or not.

12. The department has a communication policy of replying to emails within five working days.

The situation in Surrey

13. The Council told us it has a backlog of around 1000 EHC needs assessment awaiting an EP 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.
14. In July 2023, the Council’s Cabinet approved the Council’s Recovery Plan to try to deal with the issues it is experiencing due to a lack of capacity in its educational psychology and special educational needs. This report and action plan is publicly available. The report also explains the Council has only been able to issue EHC plans without the statutory 20 weeks in 27% of cases in June 2023. The Council also agreed to significantly increase funding and recruitment to its SEN and educational psychology teams. It recognises long waits should be eliminated and will improve the experience and outcomes for children and families.

The Council’s complaints policy

15. The Council’s complaints policy says it will respond to stage one complaints within 10 working days and within 20 working days for stage two complaints.

Key events

16. I have set out below a summary of the key events. It is not meant to show everything that happened.
17. On 18 October 2022 a request was made for an EHC needs assessment for Y. The Council confirmed it would complete a needs assessment on 23 November 2022.
18. On 28 December 2022 the Council wrote to Mr X confirming it had requested advice from professionals including requesting an assessment from its Educational Psychology (EP) team. It told Mr X there was a national shortage of EPs and delays because of a backlog of cases and low staffing levels. Therefore, it could not give Mr X a timescale for completing the EP report. It said it could not escalate this matter.
19. The email also said the Council:

• had received a report from Y’s Speech and Language Therapy (SALT) assessment; and
• agreed to use an independent Occupational Therapy (OT) report provided by Mr X as part of the EHC needs assessment.

20. On 11 and 12 January 2023 an EP sourced and paid for by Mr X assessed Y. Before the assessment Mr X told the Council that he would be sourcing his own EP assessment.
21. On 7 February 2023 Mr X wrote to the Council. He told the Council about his preferred placement for Y and reminded it of the statutory deadline for completing her assessment.
22. On 16 February 2023 the Council provided Mr X with a copy of the SALT report, despite having the report for several months. The report categorised Y’s needs as ‘medium’ however the authors of the report later altered their view saying Y’s needs were ‘severe’.
23. On 1 March 2023 the Council’s Education Governance Panel considered evidence gathered as part of Y’s EHC needs assessment including evidence provided by Mr X.
24. On 8 March 2023 the Council issued a draft EHC plan for Y. The draft plan contained factual, grammatical, and formatting errors.
25. On 17 March 2023 the Council contacted Mr X’s preferred placement for Y.
26. On 23 March 2023 Mr X provided comments on the draft EHC plan. Mr X and his lawyer contacted the Council asking for a response to their comments.
27. On 31 March 2023 the Council replied explaining an amended draft EHC plan had been passed to the relevant manager for approval.
28. On 3 April 2023 Mr X sought an update on the progress of the amended draft EHC plan from his Case Officer. However, he received an out of office response directing him to another member of staff, who in turn, also had her out of office on.
29. On 4 April 2023 Mr X’s lawyer also sought an update and advised the Council that Mr X would be starting judicial review proceedings into the Council’s handling of Y’s case imminently. A response was not received.
30. On 21 April 2023 the Council issued Y’s final EHC Plan, 28 weeks after the assessment request was made.

Mr X’s complaints

31. On 5 April 2023 Mr X made a stage one complaint to the Council. He complained the EHC needs assessment had exceeded the statutory timescales and that he had been forced to gather evidence required for the assessment at his own expense. Mr X also complained that emails sent to Y’s Case Officer and Senior Case Manager were not answered and the Council had shown a lack of professionalism and courtesy.
32. The Council replied on 21 April 2023. It said there was a national shortage of EPs and this accounted for the delay in Y’s case.
33. The Council’s response said that communications with Mr X had largely meet the timescales of its communications policy. It also said that multiple emails and escalations can cause confusion and further delays in responding.
34. Unhappy with the Council’s response Mr X escalated his complaint to stage two.
35. The Council replied on 17 May 2023. It recognised it failed to meet the statutory timescales for completing Y’s EHC needs assessment. It recommended the SEND service consider reimbursing Mr X the cost of the private EP report and to consider a remedy for the delay in completing the EHC needs assessment. The response said this should be done within ten working days.
36. On 23 May 2023 Mr X wrote to the Council saying its response did not address his concerns about the poor management of Y’s case, poor communication with him and the Council’s stage one response apportioning blame on him for delays in responding to communications.
37. On 24 May the Council replied. It said that communication improved once a new officer became involved. It recognised that from Mr X’s perspective it must have felt there was a lack of management oversight and it apologised.
38. Mr X made further comments in response, but these were not addressed.
39. On 16 June 2023, the SEND service provided its response to the recommendations made in the Council’s stage two complaint response. It said it would not reimburse Mr X for the cost of the private EP report. It said that Mr X was told in an email of 1 March 2023 the Council would not reimburse his costs and that he accepted this. It also said the private EP assessment took place on week 12 of the 20 week assessment process and while the Council was trying to arrange its own EP assessment.
40. The response also said the service had apologised for the delay in Y’s case and so no other remedy was necessary.
41. On 20 June Mr X replied to the SEND service’s response. He disputed there was an agreement that he would not seek reimbursement for the cost of the EP report or that the Council was actively seeking to arrange an EP assessment during the relevant period.
42. Unhappy with the Council’s consideration of his complaint Mr X approached the Ombudsman.

My consideration

43. 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.
44. In this case the Council agreed to carry out the EHC needs assessment within six weeks of receiving the request, which was within the statutory timescale and not fault.
45. However, the Council did not send Mr X the final plan within the 20-week timeframe. The Council had all the information it needed to decided Y’s EHC needs assessment within the statutory timeframe and it should have done so. This is fault by the Council.
46. The Council has a duty to gather the evidence needed to complete an EHC needs assessment. This includes completing an assessment from an EP. In its email of 28 December 2022, the Council told Mr X about delays in carrying out EP assessments and said it could not tell him when Y’s assessment would take place. The Council should have been able to confirm it would have the required report in time to complete Y’s EHC needs assessment within the statutory timescales.
47. The Ombudsman has found fault with the Council in several cases recently due to delays in carrying out EHC plan processes because of the shortage of EPs. The Ombudsman recognises the steps taken by the Council to try to resolve the lack of EPs and resulting delays. We take the view the delays in this case amount to service failure. As the Council has already taken suitable steps to decrease the wait time for EP advice, I have not made further service improvement recommendations.
48. In this case Mr X sourced and paid for his own private EP report because the Council could not reassure him it would do so within the statutory timeframe. No evidence has been provided to show the Council would have arranged an EP assessment within the statutory timeframe. I also note the EP report sourced by Mr X was used in Y’s EHC assessment. I therefore consider it is appropriate for the Council to reimburse Mr X’s costs in getting the report.
49. I note the Council’s position that it told Mr X it would not reimburse the cost of getting an EP report before he obtained it. However, I have not seen any evidence supporting this position nor have I been provided with evidence showing Mr X accepted he would not be reimbursed for the costs. Furthermore, even if such evidence were produced, I consider the circumstances of Y’s case would still warrant reimbursement of Mr X’s costs in obtaining the EP report.
50. The draft EHC plan sent to Mr X was of poor quality. The Council should be sending draft EHC plans which are accurate. Failure to do so can cause confusion and create the perception a case has not been properly considered.
51. Mr X says the Council’s communication with him was poor. The Council disagrees and says most communications were responded to within the five working days specified in its communications policy. While this may be the case there are some notable exceptions. These include acting on information from Mr X about his preferred placement for Y where the Council responded outside of this timescale. It also responded outside of timescale when replying to Mr X’s email of 23 March regarding changes to Y’s draft EHC plan and failed to respond at all to several communications between December 2022 and March 2023.
52. The Council’s Local Offer says that if a case officer is away then an alternative contact will be provided. This did not happen when Mr X and his lawyer contacted his Case Officer on 3 and 4 April 2023. As a result, Mr X had to make further calls and send additional emails to obtain the information he was seeking.
53. Mr X says he feels there was not sufficient oversight of Y’s case. I consider the delays in producing the final EHC plan, instances of poor communication and the quality of the draft report together amount to a lack of oversight of Y’s case.
54. In the Council’s stage one complaint response it suggests that Mr X contributed to the delays in responding to him because he sent multiple emails to different members of staff. While I appreciate the Council’s position that this can cause confusion it must be noted that Mr X only sent multiple communications because he was not receiving responses. The fault I found above necessitated Mr X’s actions.
55. The Council did not meet its deadlines for replying to Mr X’s complaint. While the stage one and two responses were replied to within in timescale the Council did not meet the 10 working day deadline for the service to respond to the stage two recommendation. Mr X had to wait a month for a response to be sent.
56. Mr X says the Council’s stage two response to did not all address of his concerns. I note a follow up response was sent, and this addressed additional matters. I also note the Council did not reply to Mr X’s follow up response to this communication. While I do not expect the Council to enter ongoing correspondence about a matter it should have told Mr X that it would not be doing so.

Recommended action

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

• make a symbolic payment of £200 to recognise the uncertainty and distress caused to Mr X by the Council’s failure to issue the final EHC plan in line with statutory timescales (this remedy is broadly calculated at £100 per month from the date the Council should have issued the final EHC plan);

• make a further symbolic payment of £100 to recognise the avoidable time and trouble caused to Mr X in pursuing this matter; and
• reimburse Mr X for the full cost of obtaining the private EP report for Y.

58. Within three months of my final decision the Council should undertake a written review of its handling of Y’s EHC needs assessment. The review should include how the Council managed Y’s case and the quality of the communication received by Mr X.

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

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Draft decision

60. Subject to further comments by Mr X and the Council I intend to complete my investigation as I consider the recommended action above provides a suitable remedy.

Investigator’s draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman