Summary: Mrs X complained the Council delayed completing her daughter, K’s, Education, Health and Care (EHC) plan. The Council was at fault for delay caused by a national shortage of Educational Psychologists. This means the Council has not yet issued K’s final EHC plan. The Council will apologise and pay Mrs X £500 to recognise the frustration and uncertainty the delays had on her. It will make an ongoing payment of £100 per month until it issues K’s final EHC plan.

The complaint

1. Mrs X complained the Council delayed completing an EHC assessment for her daughter, K. Mrs X said the delay meant K did not receive the provision she needed. Mrs X 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 Mrs X provided and offered to speak 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. Mrs 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. The EHC plan is set out in sections. Section F sets out the child’s special educational provision and section I ‘names’ the school or type of school the child will attend.
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 and from health care professionals involved with the child or young person. 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. The council should send the draft plan to the child’s parent or the young person. It should also send the plan to schools that may be able to accept the child or young person and meet their needs; 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 (Special Educational Needs and Disabilities) 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. Mrs X has a daughter, K who is not attending school due to poor health. Mrs X feels K needs to move to a new school that can meet her needs.
12. In late December 2022, Mrs X asked the Council to carry out an EHC assessment. Six weeks later, the Council agreed and sought Educational Psychology (EP) and health advice.
13. The Council received the EP advice in mid-August and the health advice in late-August 2023.
14. The Council made its decision to give K an EHC plan in early October and issued her draft plan a few days later. As of the date of this draft decision, the Council has not issued the final plan.

Educational Psychologists

15. The Council told us it is being affected by the nationwide shortage of EPs. 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. The Council told us that to manage the demand it:
• has built relationships with EP agencies, which meant it now had access to an extra 50 locum EP’s;
• will maintain those relationships until the end of the financial year and will keep those arrangements under review to plan for the next financial year;
• created a separate waiting list for the 250 assessment requests it received between January and the end of March 2023. It prioritised those requests according to need and within each category, allocated them to an EP by how long they had been waiting. Children in care and those without a school place were placed in the highest priority category. The next category included children in early years settings, particularly those in a nursery not attached to a school. Other categories included children preparing to transfer phases of education (e.g. primary to secondary school) and those in reception class. The Council allocated the last of those requests to an EP in September 2023.
• allocated the requests received since April 2023 according to wait time.
• remodelled the SEND department in February 2023 in advance of a more comprehensive redesign which it is currently planning. It now has a team dedicated to carrying out EHC assessments and writing children and young people’s first EHC plans.

My findings

17. We expect councils to follow the 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 Mrs X’s request for an EHC assessment the Council made its decision to assess in six weeks; this was in line with the statutory timescale so there was no fault.
18. However, the Council then had to progress the assessment ‘in a timely manner’ so it could issue K’s final EHC plan within 20 weeks of the assessment request; by early May 2023. However, EHC plan assessments must include advice from an EP and health professionals involved with the child. These should be received within six weeks of the council requesting it. The EP did not provide their advice until mid-August 2023 and the Council did not receive the health advice until late- August 2023.
19. Unlike the health advice, the Council is responsible for the commissioning and delivery of the EP advice and information. The delay in receiving the advice back was due to a 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, K’s wait to be seen meant their EHC assessment has taken 41 weeks so far, instead of the statutory timescale of 20. The Council has only just issued K’s draft EHC plan. It must now seek Mrs X’s comments and consult with schools before it issues the final plan. It is therefore likely the Council will not be able to issue the final plan for some weeks.
20. I am pleased to see the Council is making efforts to resolve the issue, as set out in paragraph sixteen. Because the Council has already taken suitable steps to decrease the wait time for EP advice, address its backlog and improve the SEND department’s service, I have not made a further recommendation.

Injustice

21. The delay in the EHC assessment caused Mrs X uncertainty and frustration while she awaited K’s final EHC plan and means her appeal right is delayed.
22. However, I cannot say whether the delay meant K lost out on special educational provision. This is because the EP advice reflected K’s needs as they were in August 2023, not necessarily as they would have been when it was originally due. I therefore cannot say what the EP advice would have been or what the Council would have taken from that advice for inclusion in K’s EHC plan.

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Agreed action

23. Within one month of the final decision the Council will take the following action.
• Apologise to Mrs X for the frustration and uncertainty she experienced due to the delay in completing K’s EHC assessment.
• Pay Mrs X £500 in recognition of that frustration and uncertainty. That equates to £100 per month of delay.
• The Council will also continue to pay Mrs X £100 per month until it issues K’s final EHC plan. This is to acknowledge the continued injustice Mrs X is experiencing caused by the Council’s delay. The Council will make this payment within one month of the date it issues the final EHC Plan.
24. The Council will provide us with evidence it has complied with the above actions.

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Final decision

25. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman