Summary: Mrs X complained about the way the Council handled an education, health and care needs assessment for her child. Mrs X said it caused unnecessary and avoidable distress, and delayed her right to appeal the Council’s decision. We find the Council at fault, and this caused injustice. We are satisfied the Council has apologised. It has agreed to make a payment to further remedy the injustice.

The complaint

1. The complainant, who I refer to here as Mrs X, complained about the way the Council handled the education, health and care needs assessment process for her child. Specifically, she complained that the Council:
1. delayed completing the education, health and care needs assessment and failed to issue its decision letter within statutory timeframes;
2. failed to chase the educational psychologist for their report, causing more delay; and,
3. failed to contact the occupational therapist during the education, health and care needs assessment process.
2. Mrs X said this delayed her right to appeal the Council’s decision. She said it caused unnecessary and avoidable distress, and had an impact on her mental health.

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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 significant injustice, or that could cause injustice to others in the future 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 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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How I considered this complaint

7. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
8. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies (updated).

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What I found

What should have happened

9. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ sets out the process for carrying out education, health and care (EHC) assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
10. The guidance says if a council decides to carry out an EHC assessment, it must decide whether to issue an EHC plan or refuse to issue a plan within 16 weeks from the request for an EHC plan.
11. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). Those consulted have a maximum of six weeks to provide the advice. 
12. The council may decide to seek additional advice, for example from an occupational therapist, or the child’s parent may request this. The council should decide if this is necessary based on the individual circumstances of the case.
13. Following completion of an EHC needs assessment, if the council decides an EHC plan is not necessary it must notify the child's parents of its decision and of their right to appeal that decision.

What happened

14. In September 2022, Mrs X asked the Council for an education, health and care (EHC) plan for her child, B. The Council acknowledged Mrs X’s request on the same day.
15. In October, Mrs X told the Council B was waiting for a referral to occupational therapy.
16. In December, the Council told Mrs X it was still waiting for the educational psychologist’s report. It explained that the educational psychology service’s resources were stretched.
17. Between February and April 2023, Mrs X chased the Council for an update at least six times. The Council apologised repeatedly, and said it would tell her once it had the educational psychologist’s report.
18. In mid-April, Mrs X asked the Council for the educational psychologist’s contact details. The Council gave Mrs X the relevant contact details and said it would chase the educational psychologist for their report.
19. The next day, Mrs X told the Council she had contacted the educational psychologist. The educational psychologist told Mrs X they had completed their report in mid-March but had mistakenly not sent it to the Council. The educational psychologist recognised this was an error on their part.
20. Mrs X complained to the Council.
21. In May, the Council sent Mrs X its decision that it would not issue an EHC plan for B.
22. In response to Mrs X’s complaint, the Council acknowledged it had not met the statutory timescale and apologised. It explained there was a national shortage of educational psychologists and the demand for EHC plans is high.
23. The Council recognised its communication with the educational psychologist was not as it should be. It said it was addressing this with both services to avoid it happening again.
24. Mrs X then brought her complaint to the Ombudsman.

Analysis

Delay completing the assessment

25. Mrs X complains that the Council delayed completing the education, health and care (EHC) needs assessment and failed to issue its decision letter within statutory timeframes (part a of the complaint).
26. Mrs X requested an EHC plan for her child, B, in September 2022. The Council had 16 weeks from this date to issue its decision. This would have been early January 2023. The Council did not send Mrs X its decision until early May 2023. This is a delay of four months.
27. As I set out below, one month of this delay was fault on the Council’s behalf. However, the first three months of this delay is service failure because the national shortage of educational psychologists is not under the Council’s control.
28. I find this delay is fault, and this fault caused Mrs X injustice. It caused unnecessary and avoidable distress, and delayed Mrs X’s right to appeal the Council’s decision not to issue an EHC plan for B.
29. I am satisfied the Council has apologised for the injustice. However, I am not satisfied that an apology alone is a suitable and proportionate remedy for the level of injustice caused here.
30. The Council has sent the Ombudsman details of its strategy to recruit more educational psychologists. I am satisfied with this so I will not propose any further service improvements.

Failure to chase a professional report

31. Mrs X complains that the Council failed to chase the educational psychologist for their report, causing more delay (part b of the complaint).
32. Mrs X chased the Council for an update on the educational psychologist’s report five times after the report had been completed (but not sent to the Council). The Council said it would tell Mrs X when it received the report.
33. It was only on the day Mrs X asked for the educational psychologist’s contact details that the Council said it would chase the educational psychologist. By which time, Mrs X had already spoken to the educational psychologist and uncovered their mistake in not sending the report.
34. The Council accepts that it did not chase the educational psychologist for their report. It says it sent limited chaser emails to educational psychologists because of the huge pressure that service was under.
35. While I recognise the reason for that practice, I cannot say how long the Council would have waited to receive the educational psychologist’s report, had Mrs X not contacted them herself and uncovered their mistake.
36. The Council recognised in its complaint response that its communication with the educational psychology team was not what it should have been.
37. I find this lack of chasing up the educational psychologist for their report caused an additional delay of one month. Had the Council chased the educational psychologist the second time Mrs X asked for an update, the Council would have received the report and the process may not have been delayed by that extra month. This is fault.
38. I find this fault caused Mrs X injustice in that it caused unnecessary and avoidable distress, and it delayed her right to appeal the Council’s decision. It is only Mrs X’s actions that stopped the delay being much longer than it could have been.

Failure to consult with occupational therapy

39. Mrs X complains that the Council failed to contact the occupational therapist during the education, health and care needs assessment process (part c of the complaint).
40. Mrs X says she did not specifically ask the Council to seek advice or information from occupational therapy. She says she did not know she had to, she thought the Council would work out what information to gather.
41. In October 2022, B had been referred for an assessment with occupational therapy, but did not have any involvement from occupational therapy at that time. B was referred to occupational therapy in December 2022. Mrs X got a letter from occupational therapy in February 2023 with an initial telephone appointment for March. Mrs X gave the Council this information in March or April.
42. I find that occupational therapy was not involved with B at the time Mrs X asked for an EHC needs assessment. The Council can only make assessments based on the services actually involved with the child in question. Mrs X updated the Council when an initial appointment was offered.
43. Occupational therapy was not involved with B until at least March 2023, when the first assessment appointment was arranged. I therefore find there was no duty or obligation for the Council to have sought advice from occupational therapy.
44. There was insufficient time for occupational therapy to assess B and provide a report to the Council on what interventions they were undertaking with B for an EHC needs assessment in April, which was already months late.
45. Also, as I have said above, councils may decide to seek additional advice from an occupational therapist. It is for the council to decide if this is necessary based on the individual circumstances of the case. There is no evidence to show that the Council should have considered it necessary to consult with occupational therapy.
46. For these reasons, I do not find the Council at fault.

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Agreed action

47. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £450 to remedy the injustice caused by the four-month delay (parts a and b of the complaint). This is made up as follows:
• The first three months of this delay was service failure due to the national shortage of educational psychologists. The Ombudsman usually recommends a symbolic payment of £100 per month for each month of delay in these cases. Three months multiplied by £100 per month is £300.
• The final month of delay was fault by the Council. I have considered the Ombudsman’s published guidance on remedies regarding avoidable and unnecessary distress. I consider a payment of £150 for this month is appropriate and proportionate, given the lengths Mrs X went to in chasing the report and getting the report herself.
• £300 plus £150 is £450.
48. The Council should provide us with evidence it has complied with the above action.

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Final decision

49. I have completed my investigation. I uphold parts a and b of this complaint because I find fault causing injustice. The Council has agreed to make a payment to remedy the injustice.
50. I do not uphold part c of this complaint. This is because there is no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman