Summary: Mrs X complained about delay and poor communications while the Council carried out an education, care and health needs assessment for her daughter. We upheld the complaint, finding delay. This caused injustice to Mrs X because of the resultant uncertainty created. The Council accepts these findings. At the end of this statement, we set out the action it has agreed to take to remedy Mrs X’s injustice and make service improvements.

The complaint

1. I have called the complainant ‘Mrs X’. She complains at the service she has received from the Council’s education service, in supporting her daughter ‘Y’, who has special educational needs. In particular, Mrs X complains the Council:

• has failed to complete an education, care and health needs assessment for Y within the statutory timeframe;
• has failed to update its records to include information Mrs X has provided, relevant to the assessment;
• has not kept her informed of the progress of the assessment or said how long it will take.

2. Mrs X says as a result she has experienced distress arising from uncertainty in not knowing how long the assessment will take to complete nor its outcome. She also considers that Y is not receiving enough help at school to meet her special educational needs and that an assessment will likely result in her receiving more help.

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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

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How I considered this complaint

5. Before issuing this decision statement I considered:

• Mrs X’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence between Mrs X and the Council about the matters forming the complaint, pre-dating our investigation;
• any relevant law, Government guidance or Council policy referred to below;
• relevant guidance published by this office including the Ombudsman’s guidance on remedies.

6. I also invited Mrs X and the Council to comment on a draft version of this decision statement. I took account of any comments they made, or further evidence provided before finalising the decision statement.
7. There is an information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted). Under the terms of that agreement, I will share the final decision statement with Ofsted before publishing it on our website.

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What I found

Legal and administrative background

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and arrangements to meet them.
9. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for undertaking EHC assessments and producing EHC plans. The guidance supplements the Children and Families Act 2014 and the SEN Regulations 2014. It says that councils:

• must decide within six weeks whether to agree to a request for an education, health and care needs assessment;
• must decide within 16 weeks of a request whether to issue an EHC plan;
• where issuing a plan, must do so no more than 20 weeks after receiving the request (unless certain specific circumstances apply).

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.

11. Professionals have six weeks to provide advice when requested to do so.

Key facts

12. Y has just begun Year 2 of her primary school education. She has a physical disability. At the beginning of November 2022, Y’s school requested on behalf of Mrs X that Y should have an education, health and care needs assessment.
13. In December 2022, after seven weeks, the Council declined to assess. But in early February, after meeting with Mrs X, it reversed that decision.
14. Its assessment has yet to complete. While it has been ongoing Y has received a diagnosis of autism (April 2022). Mrs X says she has sent a copy of this to the Council with other medical information. Mrs X says that despite attempts at contacting the caseworker assigned to Y’s case, she has not received confirmation the Council has linked this information to Y’s file.
15. As part of the assessment the Council referred Y’s case to its Education Psychology service for advice. Due to a backlog, an Education Psychologist (EP) could not assess Y’s needs until this month.
16. Presently, Mrs X does not know when the Council will complete its assessment of Y’s needs, nor what the outcome will be. Currently, Y’s school receives some funding to help meet her needs, but this is not enough to provide her with one-to-one support through the school week. Mrs X considers this is what Y needs and is hopeful the Council will agree to provide Y with an EHC plan that will specify this.
17. Before we agreed to investigate this complaint, Mrs X raised her concerns about delay with the Council at the end of May 2023. It replied, expressing regret for the delay. It said that it had experienced an increased demand for assessments and that it had limited staffing capacity. It told Mrs X there was a national shortage of EPs. It said it was “taking a number of steps to address our staffing, including seeking to recruit newly qualified EPs, engaging Associate EPs, and sponsoring EPs from abroad for work visas”. It offered to carry out a virtual EP consultation, but Mrs X considered this unsuitable, considering an EP would get a truer picture of Y’s needs by meeting her in person. The Council’s reply did not comment on a suggestion made by Mrs X that it should commission a private EP assessment for Y.
18. As part of my investigation, I have considered two recent investigations undertaken by this office where we have upheld complaints about delay in the Council completing assessments. In both these cases, a delay in a child seeing an EP has been the primary source of the delay. In both cases the Council has told us about the efforts it is making to deal with its backlog, in similar terms to those quoted at paragraph 17 above.
19. Following one of our investigations the Council agreed it would set up clear guidelines for practitioners to consider the provision of independent EP assessments, as part of its EHC assessment process. This followed us finding the Council was not doing enough to source external EP reports to try and minimise delays.
20. In specific comments on this complaint, the Council has told us that it anticipates it will have completed Y’s assessment by the beginning of November 2023. It says that if it agrees to issue an EHC plan, it expects it will issue this before the end of November.

My findings

21. I set out above the timescales the Council should adhere to when asked to carry out an education, health and care needs assessment. In this case the Council has failed to meet those timescales.
22. I do not regard the one-week delay in responding to the request for assessment as particularly significant. But it is significant Mrs X has waited so long for the Council to tell her if it will issue Y with an EHC plan. It should have done this by early April (nine weeks after it agreed to the assessment, as it had taken seven weeks to consider the request). Its decision is therefore five months overdue. And the Council has suggested Mrs X must wait several more weeks for an outcome.
23. Because of this delay, I must record a finding of fault. I accept that lying behind the delay is both an increased demand for needs assessments and a shortage of staff to process them. In particular, the Council has pointed to a shortage of EPs which I am aware is a nationwide issue.
24. However, this does not provide mitigation against a finding of fault. For where the Council fails to deliver a service within statutory timescales we will uphold a complaint, even where part or all of a service failing lies outside its control.
25. In these circumstances we also expect councils to use whatever tools they have available to them to minimise delays. I recognise the steps the Council has taken so far and its explanation of those to Mrs X. But I reiterate that it is also our expectation the Council should consider using independent EPs if it can source assessments from outside its own pool of professionals.
26. I also note that Mrs X’s complaint involves consideration of a wider issue than that of delay. She has consistently pointed out the problems she has had communicating with the Council's special educational needs service. It is unacceptable that Mrs X has received no acknowledgment the Council has received a copy of Y’s autism diagnosis or other relevant paperwork. Also, that the Council has not kept in touch with her to tell her how long she must wait for the assessment to complete. In circumstances where the Council faces backlogs and cannot meet statutory targets, it is important to let parents know what is happening.
27. The Council has not challenged Mrs X’s account on this point. I therefore make a further finding of fault.
28. In considering the consequences of these faults, I understand Mrs X’s concern that Y’s primary school may not currently meet her special educational needs in full. However, I cannot second guess the outcome of the Council’s assessment, nor the content of any EHC plan that might result.
29. But I find Mrs X has still suffered injustice because of the delay in completing the assessment. This will have caused her distress as uncertainty as she describes. The extra frustration caused by a lack of communication by the Council will also contribute to that.

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Agreed action

30. The Council accepts these findings. It has agreed that within 20 working days of this decision it will:
1. provide her with an apology recognising the findings of this investigation and taking account of section 3.2 of our guidance on remedies; Guidance on remedies - Local Government and Social Care Ombudsman
2. make a symbolic payment of £500 to recognise the distress caused by its delay and any poor customer service;
3. commit to updating Mrs X on the progress of its assessment at least once every four weeks until it completes; it will also confirm what information it holds on file that will form part of its assessment such as Y’s autism diagnosis and any supplementary medical reports.
31. As I noted above other recent investigations by this office have considered the Council’s shortage of EPs and the Council has agreed action as a result. So, I did not recommend the Council consider making any specific service improvements around that issue. However, I consider the Council can make improvements to its communications with parents, where it is consistently missing the statutory timescales. The Council has said that it agrees “better communications with parents is essential”. So, it has agreed, that within two months of a decision on this complaint it will write to us and confirm measures it will take to improve its performance in this area. It has agreed specifically to consider providing parents with regular updates (say at four or six weeks) when:
1. it has referred cases for education psychology advice and their case has exceeded the six-week timescale for a response; for example, at four or six week intervals and to let them know when it anticipates any EP assessment will take place;
2. it has been unable to confirm after 16 weeks whether it will issue an EHC plan and to tell them when it anticipates making that decision.
32. The Council will provide us with evidence it has complied with the above actions.

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Final decision

33. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mrs X. The Council accepts this finding. It has agreed to take action that I consider will remedy that injustice and improve its service for others. Consequently, I have completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman