Summary: Miss B says the Council delayed completing an education, health and care needs assessment and in issuing a final education, health and care plan. The Council failed to meet the timescales in the code of practice when issuing the final education, health and care plan. An apology, payment to Miss B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council delayed carrying out an education, health and care (EHC) needs assessment and in issuing a final education, health and care plan (EHCP) for her daughter.
2. Miss B says the Council’s failures mean her daughter missed out on special educational needs provision and it resulted in a delay in her starting secondary school. Miss B says this has impacted on her daughter’s mental health and her own health.

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The Ombudsman’s role and powers

3. 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)
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(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)

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Miss B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final 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

What should have happened

9. Children with special educational needs may have an EHCP. Councils are the lead agency for carrying out assessments for EHCPs and have the statutory duty to secure special educational provision in an EHCP. (Children and Families Act 2014, Section 42)
10. Statutory guidance 'Special Educational Needs and Disability Code of Practice: 0 to 25 years' (code of practice) sets out the process for carrying out EHC assessments and producing EHCPs. 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 EHCPs "must be carried out in a timely manner". Steps must be completed as soon as practicable; and the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks.
11. 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. It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
12. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. The appeal can be against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. 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 EHCP has been issued. We cannot direct changes to the sections about the child's special educational needs, special educational provision, or name a different school or type of school. Only the tribunal can do this.
13. An EHCP must be reviewed and amended in sufficient time before a child or young person moves between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools.

What happened

14. Miss B’s daughter has special educational needs. Miss B asked the Council to carry out an EHC needs assessment. There is a dispute over the date Miss B requested that assessment. Miss B says she requested the assessment in July 2022. However, the Council says it did not receive the request until 7 September 2022. The Council acknowledged receipt of that request on 9 September and told Miss B it would decide whether to carry out an assessment by 18 October.
15. On 4 October the Council agreed to carry out an assessment. The panel asked officers to seek advice from child and adolescent mental health services disability and educational psychology.
16. The Council sent out the requests for professional advice on 25 October. That meant the advice was due back on 6 December.
17. On 21 November the educational psychology service told the Council there would be a delay carrying out the assessment.
18. The Council issued a draft EHCP without the educational psychology advice on 18 January 2023. Miss B asked the Council to pause the process until it received the educational psychology report.
19. The Council received the educational psychology report on 21 February. That report recommended occupational therapy input for sensory needs.
20. The Council’s panel considered the case again on 1 March and agreed to review the funding when the Council received the advice from occupational therapy. The Council requested that advice the same day.
21. The Council issued a draft EHCP on 6 March. The Council offered Miss B the option of the educational psychologist completing the assessment of her daughter’s sensory needs due to the delay in receiving occupational therapy advice. Miss B said she wanted the occupational therapy assessment to go ahead.
22. Miss B told the Council the school she wanted named for her daughter to start in September 2023 and submitted amendments to the draft EHCP. Miss B asked the Council to add in the occupational therapy advice after finalising the EHCP.
23. On 6 April the Council issued a final EHCP naming the type of setting for secondary transfer. Miss B submitted an appeal.
24. The Council received the occupational therapy report on 13 April.
25. The Council consulted the school Miss B wanted named in section I of her daughter’s EHCP in June 2023. The Council issued a final EHCP naming Miss B’s chosen school on 20 September. That meant the appeal was vacated.
26. The Council says it has carried out three recruitment exercises for educational psychologists since April 2022, with the latest in September 2023. That has resulted in the Council appointing an additional 7 educational psychologists. Alongside that the Council has recruited 2 locum educational psychologists on a temporary basis.

Analysis

27. Miss B says the Council delayed issuing her daughter’s EHCP. I set out in paragraph 10 the process the Council has to follow when carrying out an EHC needs assessment and then in issuing a final EHCP. That sets clear timescales with the overall process from the request for an EHC needs assessment to the Council issuing a final EHCP of a maximum of 20 weeks.
28. There is a dispute about when Miss B requested an EHC needs assessment. Miss B says she sent the request to the Council by recorded delivery in July 2022. However, the Council says it did not receive the request until 7 September 2022. I can see from the request submitted by Miss B it is signed on 15 July 2022. However, without a record of the Council receiving the form in July 2022 I cannot say the Council received it any earlier than 7 September 2022.
29. Irrespective of that though, it is clear even based on the date of receipt of 7 September 2022 the Council failed to meet the timescale set out in the code of practice because it did not issue a final plan until April 2023. The Council says part of the reason it could not meet the 20 week timescale was because there were delays securing a report from the educational psychologist. I also appreciate the Council could not have issued an EHCP without that input.
30. The evidence the Council has provided satisfies me it has made some attempts to recruit additional educational psychologists and has sought additional temporary educational psychologists to fill the gaps. It is clear though this has not enabled the Council to meet the timescale set out in the code of practice in this case. Failure to adhere to the timescales in the code of practice is fault.
31. There were also delays in the Council seeking advice from the relevant professionals once its panel agreed to carry out an assessment on 4 October 2022. There is no evidence the Council consulted professionals until three weeks later on 25 October. That delay contributed to the overall delay in issuing the final EHCP and is fault.
32. There is also the issue about whether occupational therapy advice should have been identified at an earlier stage and whether this contributed to the overall delay issuing the EHCP. Miss B says it was clear from her request for a needs assessment that her daughter had sensory needs and therefore occupational therapy input was required. Miss B says it should therefore not have taken a recommendation from the educational psychologist to seek an occupational therapy report which delayed the process further.
33. I have seen no evidence to suggest Miss B specifically asked the Council to seek occupational therapy input when she requested a needs assessment. Miss B did, however, refer to her daughter’s sensory needs. I can see from the outcome of the panel meeting though the panel did not consider an occupational therapy assessment required. In any event, there is no reason why the Council could not have issued a final EHCP without the occupational therapy advice, which is what it did. Occupational therapy input for an EHCP is not required in the same way that an educational psychologist’s report is required before the Council can issue an EHCP.
34. I note the Council says it delayed issuing the final EHCP as Miss B asked it to. However, there is no evidence Miss B asked the Council to put the issue of the final EHCP on hold until it received the occupational therapy advice. Even if she had, I would have expected the Council to adhere to the timescales set out in the statutory guidance. Failure to do that is fault.
35. The Ombudsman has issued guidance on remedies for EHCPs that are delayed due to the lack of sufficient educational psychologists. We usually recommend the Council pay £100 for each month where the final EHCP is delayed while waiting for an educational psychologist’s report. In this case the Council should have issued a final EHCP by 24 January 2023. There was therefore a 2.5 month delay before the Council issued the final EHCP on 6 April 2023. To remedy that I recommended the Council pay Miss B £250. I also recommended the Council pay Miss B an additional £150 to reflect the fact the delay came at an important stage for her daughter as she was due to transfer to secondary school in September 2023. That meant the Council should have issued the final EHCP by 15 February 2023 which is an additional area of fault. I consider that likely added significantly to Miss B’s distress as she did not know which secondary school her daughter would be attending. That would undoubtedly have also caused her daughter distress. The Council has agreed to my recommendations.
36. I recognise there was a delay in Miss B’s daughter starting at her chosen secondary school. I cannot seek a remedy for that as this relates to the Council’s decision to name a different school in section I of the EHCP. I am satisfied Miss B submitted an appeal in relation to the school named in section I. The Ombudsman does not have jurisdiction to consider any failure to provide education from the point at which the appeal right arises up until when the appeal is concluded. I therefore cannot seek any remedy for the delay in Miss B’s daughter starting secondary school.
37. I am satisfied the Council is seeking to address the lack of educational psychologists by carrying out further recruitment and I therefore make no recommendation about that. I recommended though the Council remind officers dealing with EHCPs of the need to adhere to the timescales in the code of practice. The Council has agreed to my recommendation.

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Agreed action

38. Within one month of my decision the Council should:
• apologise to Miss B for the distress and upset she experienced due to the faults identified in this decision;
• pay Miss B £400; and
• send a memo to officers to remind them of the need to adhere to the timescales set out in the code of practice when carrying out EHC needs assessments and when issuing final EHCP’s.
39. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

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Final decision

40. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman