Summary: Mrs X complained the Council delayed completing her daughter, F’s Education, Health and Care (EHC) needs assessment in line with statutory timescales. The Council failed to decide whether to issue F with an EHC plan within the statutory timescales, caused by a delay in obtaining Educational Psychologist advice. This has caused a further delay in the Council issuing F’s final EHC plan. The Council agreed to make a payment to Mrs X to acknowledge the distress, frustration and uncertainty caused to her and F as a result of the delays. It will make a further payment to acknowledge the continuing injustice once it issues F’s final EHC plan.

The complaint

1. Mrs X complained the Council failed to complete her daughter, F’s, Education, Health and Care (EHC) needs assessment within statutory timescales due to a delay in obtaining Educational Psychologist advice. This in turn caused a delay in issuing F’s final EHC plan.
2. Mrs X says the delay means F is without the Special Educational Needs (SEN) provision she is entitled to. The delays have caused Mrs X distress and frustration and has impacted on F’s ability to attend school.

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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. 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)
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)
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 spoke to Mrs X about her complaint and considered information she provided.
8. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website.
9. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

10. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
11. 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 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 EHC plans “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 EHC plan is issued must take no more than 20 weeks.

12. 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 (EP). 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.
13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
14. Parents can appeal a council’s decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. 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 EHC plan 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. Only the tribunal can do this.
15. 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)

What happened

16. Mrs X has a daughter, F who in 2022/23 attended a mainstream secondary school. Mrs X said F started finding school difficult during 2022 which led to reduced attendance. Mrs X said F has been diagnosed with autism and suffers with a high level of anxiety.
17. Mrs X asked the Council to carry out an EHC needs assessment for F in January 2023. The Council notified Mrs X of its decision to carry out the assessment at the start of March.
18. After agreeing to carry out the EHC needs assessment, in line with statutory timescales the Council should have made a decision about whether to issue F with an EHC plan by mid-May 2023. If that was the case the Council should then have issued F’s final EHC plan by 9 June 2023.
19. Mrs X complained to the Council in April 2023. She said the Council had informed her she will need to wait eight months before F would be assessed by an Educational Psychologist (EP). Mrs X said therefore the Council would fail to meet the statutory timescales to either make a decision around whether to issue a plan or finalise a plan. Records show Mrs X indicated she would seek to commission her own EP.
20. The Council responded to Mrs X in May and apologised for being unable to complete the EHC needs assessment, which it said was down to a shortage of EPs to provide the necessary advice. The Council acknowledged Mrs X’s intention to seek her own independent EP advice but pointed out any advice obtained must meet the statutory requirements of the SEN Code of Practice. The Council said it could not guarantee it would be able to use an independent report as the basis for its decision to issue an EHC plan.
21. Mrs X was unhappy with the Council’s response and complained to us.
22. Following her complaint to us the Council obtained the EP report in July 2023 and agreed to issue F with an EHC plan at the end of July. The Council issued F’s draft EHC plan on 21 September 2023. To date, it has not issued a final EHC plan.
23. Mrs X said she decided to obtain an independent EP report in June 2023 after the Council had said the wait would be ‘approximately eight months’ after the date it agreed to assess F. The Council’s EP completed their report four months after that date. The Council said Mrs X’s report did not meet the requirements to inform an EHC needs assessment, although it does refer to the report within the draft plan. Mrs X disputes this was the case, however said she decided not include her independent report within the plan because the Council’s one was more strongly worded.
24. The Council has explained steps it is taking to address the shortage of EPs and has provided information on staff it has recently successfully recruited. The Council has also provided information about improvements it has made to retain staff.

My findings

25. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
26. After agreeing to carry out an EHC needs assessment, in line with statutory timescales the Council should have decided whether to issue an EHC plan by mid-May and then subsequently issued the final plan by 9 June 2023.
27. The EP report should have been available to the Council by April in order for it to have met the June deadline. The EP report was not completed until July 2023 which was fault and caused a delay in the Council deciding whether to issue F with a plan. This service failure came about due the Council being unable to recruit enough EPs to meet demand. This in turn has had a knock-on effect which means at the time of writing, F still does not have a finalised EHC plan as it only issued the draft plan in September 2023. The delay up to the date of the draft EHC plan is 15 weeks.
28. As the Council’s intention is to issue a final EHC plan for F, I have taken the June date as the start date for the injustice she and Mrs X have suffered as a result of the delays.
29. The delays have had an impact on both Mrs X and F. Had the Council carried out F’s EHC needs assessment in line with statutory timescales then F would have had a final EHC plan in place by June 2023 and then for the start of the 2023/24 academic year. This may have given F a better chance of coping in the school environment. The delays mean F has lost that opportunity which has caused distress and uncertainty to both her and Mrs X.
30. I have made a recommendation to acknowledge the injustice caused to Mrs X and F up to the point when the Council issued F’s draft EHC plan in September 2023. I have made a further recommendation to ensure the Council continues providing a remedy for the continuing injustice from September until the date it issues the final EHC plan. I am satisfied the Council is actively recruiting EPs in its area to address the shortage, so I have not made any further service improvement recommendations.
31. Once the Council has issued a final EHC plan for F, Mrs X will have a right of appeal to the Tribunal if she disagrees with the special educational needs, provision or placement specified in the EHC plan. As a result, I have not recommended a payment for any potential loss or delay in special educational provision to F because the EP assessment and support set out in the final EHC plan should identify the special educational support F now needs. If she feels it does not, then she has a right to appeal to the tribunal.
32. Mrs X was also unhappy about paying to commission an independent EP which she says she only did because the Council told her the wait was eight months. The Council told her the wait would be ‘approximately 8 months’ from the date it agreed to assess F, which it said was a worst case scenario. The Council also said Mrs X’s report did not meet the requirements as set out in the Code of Practice for it to be used for an EHC needs assessment. Although Mrs X disputes this, F’s final EHC plan was written using advice from the Council’s EP and not Mrs X’s independent report, which was ultimately her choice to commission. This being the case, I have not made a recommendation to reimburse Mrs X for the fees she paid for this.

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Agreed action

33. Within one month of the final decision the Council agreed to pay Mrs X £375 to acknowledge the distress, frustration and uncertainty caused to her and F by the Council’s failure to issue his final EHC plan in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan in June 2023 until the date it issued the draft plan in September 2023.
34. When the Council issues F’s final EHC plan it agreed to provide Mrs X with a further financial remedy. This is to acknowledge the continued injustice caused by the delay in issuing F’s final EHC plan from the date of the draft EHC plan in September 2023 up to the date of the final EHC plan. The Council should calculate the payment at £100 per month in line with the recommendation above. The Council should make this payment to Mrs X within one month of the date of the final EHC plan. She should use it for F’s benefit as she sees fit.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman