Summary: The Council failed to decide whether to issue K with an Education, Health and Care (EHC) plan within statutory timescales due to a delay in obtaining Educational Psychologist advice. The Council has agreed to make a symbolic payment to Mrs B to acknowledge the distress, frustration and uncertainty caused to her and K as a result of the delay.

The complaint

1. Mrs B complains the Council has failed to complete her son, K’s Education, Health and Care (EHC) needs assessment due to a lack of Educational Psychologists. She says that because of this, K does not have an EHC plan.
2. Mrs B says the delays have caused distress and uncertainty. She moved K out of a mainstream school to a specialist setting in September 2023 which she is paying for herself. She does not consider she would be incurring this expense if there had been no delays by the Council and it had issued an EHC plan.

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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 an injustice, 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. 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. 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)
8. 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

9. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided;
• considered relevant law, statutory guidance and our guidance on remedies which is published on our website; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

10. 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.
11. 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 a child’s needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• where a Council decides not to issue an EHC plan following an EHC needs assessment, it must inform the child’s parent or the young person within a maximum of 16 weeks from the request for a EHC needs assessment; 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.

12. As part of the EHC assessment, councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice.
13. 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. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

What happened

14. Mrs B’s son, K is 10 years old and has special educational needs.
15. In January 2023, K’s school asked the Council to carry out an Education, Health and Care (EHC) needs assessment.
16. The Council agreed to carry out an assessment. As well as requesting advice from health and social care professionals, it asked for an educational psychologist (EP) to conduct a psychological assessment.
17. Mrs B complained to the Council in May 2023. She referred to the 20-week timescale for issuing final EHC plans and said that the Council would be in breach because K had not yet been seen by an EP.
18. In the Council’s response, it explained that there was a national shortage of EP professionals and it had experienced difficulty recruiting qualified staff. It apologised and said it was working with commissioning services and taking steps to address the shortfall. The Council also told Mrs B that if she had a private EP report, the Council would consider it.
19. Mrs B remained unhappy and complained to us. She explained that she had moved K to a different school, a specialist setting, as she did not consider his mainstream primary school was able to meet his needs.
20. An EP assessment was carried out in September.
21. The Council then considered the evidence and decided that while K has special educational needs, the provision required to meet his needs could reasonably be provided with the resources ordinarily available to mainstream settings. It decided not to issue an EHC plan.
22. Mrs B says that she intends to appeal the Council’s decision to the SEND Tribunal.

Analysis

23. We expect councils to follow the statutory timescales set out in the law and the Code.
24. Where a Council decides not to issue an EHC plan following an EHC needs assessment, as in this case, it must inform the child’s parent or the young person within a maximum of 16 weeks from the request for an assessment.
25. The Council was unable to reach a decision until it received the completed EP report. The report should have been provided within six weeks, by the end of March 2023, but it was not completed until the end of September. The Council told Mrs B that it had decided not to issue a plan 38 weeks after it received the request for an assessment. This delay of five months was fault.
26. The Council has explained that the delay was caused by an increase in requests for EHC needs assessments and a national shortage of EPs. 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 a new commissioning arrangement that will provide capacity for EP advice on an extra 700 cases over a 12-month period.
27. I acknowledge the Council’s explanation and the action it is taking to improve its service. However, it took five months longer to complete its assessment than set out in the Code. I consider this amounts to service failure.
28. I consider the delay caused Mrs B and K distress, frustration and uncertainty while waiting for the Council’s decision. If there had been no delay, Mrs B would have been able to challenge the Council’s decision not to issue K with an EHC plan sooner. I do not find that the costs Mrs B incurred sending K to a specialist setting were due to the Council’s delay in reaching its decision.
29. I have decided not to investigate the Council’s decision to not issue a plan because I consider it is reasonable for Mrs B to appeal the decision to the SEND Tribunal.

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Agreed action

30. Within four weeks, the Council will make a payment of £500 to Mrs B to acknowledge the distress, frustration and uncertainty caused to her and K by the five-month delay in reaching its decision to not issue a plan.
31. As the Council is already taking action to improve its service, I have not made any service improvement recommendations.
32. The Council should provide us with evidence it has complied with the above action.

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Final decision

33. I have completed my investigation and uphold Mrs B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman