• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to complete her daughter, Y’s, Education, Health and Care (EHC) needs assessment and produce an Education, Health and Care Plan in line with statutory deadlines. We find the Council at fault for missing statutory deadlines and for not keeping Mrs X updated throughout the process. We recommend the Council apologise to Mrs X and make a payment to recognise the injustice caused.

The complaint

1. Mrs X complains the Council failed to meet the statutory time limits to complete an EHC needs assessment and produce an EHC Plan for Y. Mrs X also says the communication from the Council has been poor and she had to constantly chase for updates. Mrs X says this has caused real stress for her.

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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. 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.
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. I spoke to Mrs X about her complaint and considered information she provided. I also considered information received from the Council.
6. Mrs X and the Council 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 policy

7. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
8. On receiving a request for an EHC needs assessment, a council must decide whether an assessment is necessary. As part of an EHC needs assessment, a council must seek advice from the parent, head teacher of the school, and from any other professionals, including an Educational Psychologist (EP).
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:
   • The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
   • If a Council decides to assess a child’s EHC needs they must gather information from relevant professionals, who must respond within six weeks;
   • If the Council decides not to issue an EHC Plan, it must explain this within 16 weeks from the date of the request.
   • If it decides to issue an EHC Plan, the Council must then send a draft plan to the child’s parents, giving them 15 days to comment; 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.

What happened

10. In the school year 2022-23 Y was not yet of compulsory school age and attended a pre-school. Y’s pre-school contacted the Council on 11 December 2022 and asked it to complete an EHC needs assessment for Y ahead of her starting primary school in September 2024.
11. On 19 January 2023 the Council agreed to carry out an EHC needs assessment for Y and wrote to Mrs X to confirm this. The Council sent requests for EP, Speech and Language Therapy (SALT) and Occupational Therapy (OT) advice on 23 January.
12. By 2 March the Council had missed the deadline to gather information from the relevant professionals. Mrs X contacted the Council to explain she had still not been contacted by an EP to assess Y. The Council explained it was aware the EPs were running behind schedule but it had chased to try to get a date confirmed for Y’s assessment.
13. By 2 April the Council had missed the 16-week deadline to let Mrs X know if it had decided not to issue an EHC Plan for Y.
14. On 6 April Mrs X complained to the Council. Mrs X explained the Council had failed to meet statutory deadlines to obtain relevant professional advice or let her know if it had decided whether to issue an EHC Plan. Mrs X said she now did not believe the Council would be able to meet the 20-week deadline to complete the process.
15. By 30 April the Council still had not let Mrs X know if it had decided to issue an EHC Plan for Y. It had missed the 16-week deadline to do so and the 20-week deadline by which to issue a final EHC Plan for Y.
16. The Council responded to Mrs X’s complaint on 12 May and explained there was a delay in receiving the EP report used to inform the EHC needs assessment process. The Council said it was working to obtain advice for Y’s assessment as soon as possible and could then decide whether to produce an EHC Plan. The Council also explained Mrs X could commission her own reports and, if they met the standards the Council needed for an EHC needs assessment, it may compensate her for these, up to a maximum of £925. The Council explained it could not guarantee it would accept and use any privately commissioned EP report as part of the EHC needs assessment until it had received this.
17. Mrs X complained to the Council again on 26 May. Mrs X explained the Council had now missed the deadline to issue an EHC Plan for Y by eight weeks and she was yet to receive any contact from an EP. Mrs X said she did not feel the Council had done enough to keep her updated throughout the process and asked it to commission an EP report as soon as possible.
18. The Council responded to Mrs X’s complaint on 26 June. The Council agreed it had now missed the statutory deadlines to assess Y’s EHC needs, decide if it would produce and EHC plan and issue one. It explained there was a national shortage of EPs which made it difficult to recruit qualified staff but the Council was working to address this. The Council said an EP would be in touch as soon as one was available and it was sorry it could not update Mrs X any further than this.
19. Mrs X brought her complaint to the Ombudsman in June 2023.
20. On 14 July the Council wrote to Mrs X again. It apologised for failing to meet the statutory time limits to complete an EHC needs assessment for Y and reiterated that this was down to a national shortage of EPs. To recognise the time and trouble caused by the delay, the Council offered Mrs X a symbolic payment of £200.
21. An EP was allocated to Y’s case in August 2023, and provided the Council with their assessment that month.
22. On 14 September the Council wrote to Mrs X to confirm it had decided to issue and EHC Plan for Y.
23. The Council issued a draft EHC Plan for Y on 3 October. Mrs X returned comments on this which the Council considered and issued a final EHC Plan on 6 November 2023, around 27 weeks after the deadline to do so.
24. The Council has told us the EP service is running at 50% capacity and there has been an increase in referrals since 2020 which is affecting the service. To address this going forward, it has said it is currently undertaking a recruitment programme to attract more EPs and other professionals who contribute to EHC needs assessments as a priority. It is also commissioning additional EPs to complete 700 reports for the next year and introducing a temporary policy, setting out how private EP reports would be considered and the conditions under which a parent would be reimbursed.

Analysis

25. The Council began the process of assessing Y’s EHC needs on 11 December 2022. If the Council completed this in line with statutory time limits, Y’s EHC Plan would have been finalised by 30 April 2023. However, the Council did not finalise Y’s EHC Plan until 6 November 2023. This is fault.
26. The EHC Plan was finalised before Y was due to start school, so she did not miss out on any provision she was entitled to as a result of the delays. However, the delays caused uncertainty and distress to Mrs X, which is injustice.
27. The Council has confirmed the reason for the delay is a shortage of available EPs. However, the Council has explained it is already in the process of addressing this with a priority recruitment programme and I find this is suitable to address any ongoing injustice.
28. Mrs X had to spend a considerable amount of time chasing the Council for updates. This is fault and caused further distress and uncertainty for Mrs X which is injustice.

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Agreed action

29. To address the injustice identified above, the Council has agreed to carry out the following actions within one month:
    • Provide Mrs X with a written apology for the injustice identified above
    • Pay Mrs X £700 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s failure to issue Y’s final EHC Plan in line with the statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC Plan in April 2023, up to the date of the final EHC Plan in November 2023.
    • Pay Mrs X £100 to recognise the additional distress and uncertainty caused to her by the Council’s failure to ensure she was regularly updated throughout the process.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I find the Council at fault for failing to complete Y’s EHC needs assessment in line with statutory time limits and for failing to keep Mrs X updated throughout the process. The Council has accepted my recommendations and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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