Summary: Mr X complains about the delay in the Council issuing an Education, Health and Care Plan for Child Y. He says this meant Child Y was without the support they needed and missed out on the opportunity to attend their preferred school. We find fault with the Council for the delay in issuing Child Y’s Education, Health and Care Plan. The Council has agreed to pay a financial remedy in recognition of the delay.

The complaint

1. Mr X complains the Council breached the statutory timescales for issuing an Education, Health and Care Plan (EHCP) for Child Y due to a delay in educational psychologists.
2. Mr X complains that because of the Council’s delay, his child was without the support they needed. Mr X says this meant Child Y missed out on the opportunity to attend their preferred school and was without their EHCP during the transition period.

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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. 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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
6. 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

7. I considered Mr X’s complaint and information he provided. I also considered information from the Council.
8. I considered comments received on a draft of my decision.

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What I found

Legal and administrative background

Education, health and care plans (EHCPs)

9. A child with special educational needs may have an Education, Health and Care (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
10. 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 EHCP’s. 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 EHCP’s “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 EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHCP.
11. 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); and
• advice and information from any person requested by the parent or young person, where the council considers it reasonable.
12. Those consulted have a maximum of six weeks to provide the advice.

Key facts

13. Mr X has a child, Child Y, with special educational needs. Mr X and Child Y previously lived under a different local authority and Mr X asked it to carry out an Education, Health and Care (EHC) needs assessment for Child Y. Mr X moved within the Council’s area in December 2022. The previous local authority contacted the Council to transfer the draft EHCP. The Council contacted Mr X on 23rd December 2022 to confirm it had received the draft EHCP.
14. On 10th January 2023 the Council agreed to complete the EHC needs assessment. It then requested advice from professionals involved with Child Y. This included seeking advice from the educational psychology (EP) service. However, because of a severe lack of educational psychologists nationally, the Council says it was not able to allocate an EP until 28th June 2023.
15. Mr X complained to the Council about the delay in completing the assessment. He was concerned the Council would not be able to secure a place at the preferred school for Child Y in September 2023 because of the delay.
16. The Council responded to Mr X’s complaint. It said the delay was because of the EP service and the need to wait for EP advice to confirm the EHCP. It advised Mr X that EP’s were allocated in order of the request for an EHCP being approved, and that unfortunately it was still waiting to allocate an EP to Child Y.
17. In the interim, Child Y was allocated a school place for September 2023. It was not the school Mr X preferred Child Y to attend. The Council wrote to the allocated school and advised it could ask for additional funding to support with Child Y's transition if it needed to.
18. The Council received the requested EP advice on 10th August 2023, and issued the draft EHCP on 14th September 2023, with the final EHCP being issued on 1st October 2023.

Analysis

19. In response to Mr X’s complaint, the Council accepted there had been a delay in completing the assessment and explained this was caused by the national shortage of EPs.
20. I acknowledge the difficulties faced by the Council in obtaining EP advice which is a national problem. However, the Council has a legal duty to meet the statutory deadline which is absolute. The EHC needs assessment process should take a maximum of 20 weeks. The Council should have issued Child Y’s final EHCP by 30th May 2023. It did not do so until 1st October 2023. This was a service failure by the Council, causing a delay of four months.
21. Mr X says he asked the Council if the EHCP could be finalised sooner if he sought a private EP report. The Council told Mr X that he was free to do so, but it would not change how quickly the EHCP would be finalised as it would still need to review any advice from the report, and it was doing this in chronological order of applications.
22. The Council contacted the school prior to September 2023 and advised the School it could apply for additional funding to support with Child Y’s transition whilst it finalised their EHCP. I consider the Council was trying to be proactive and give support to Child Y whilst it finalised their plan. I cannot say that Child Y would have been allocated a place at the preferred school if the EHCP had been issued earlier, however I am satisfied they have not been caused injustice by being allocated a different school.
23. The delay in the process caused Mr X distress and uncertainty about whether Child Y would have the support they needed to be able to start school in September 2023.
24. However, I do not consider that Child Y was significantly disadvantaged by the delay. Mr X has confirmed he is happy with the school Child Y did get a place at, and that the support for them has been in place.
25. In response my enquiries, the Council apologised for the delay and said it had taken steps to ensure similar delays did not occur in future. These included retaining agency EP’s and offering virtual EP assessments to families which could often take place sooner as the Council could appoint EP’s from outside its area. I am satisfied the Council has explained how it is allocating EP assessments to those waiting.
26. In a recent similar case, we recommended that the Council update us on the action it had taken to try and resolve the delays with the availability of EPs. So, I have not made any further service improvement recommendations. However, I have recommended a personal remedy for the injustice caused to Mr X below.

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Agreed action

27. Within four weeks the Council has agreed to

• Write to Mr X and apologise for the delay in issuing the EHCP, and
• Pay Mr X £400. This is calculated at £100 per month for every month of delay outside the statutory timescales for the EHCP.

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

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Final decision

29. I have completed my investigation. I find fault with the Council for the delay in issuing the EHCP.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman