Summary: Mrs X complained the Council delayed issuing her child, Y, with an Education, Health and Care (EHC) Plan. The Council was at fault for delaying issuing Y with an EHC Plan. The delay was caused by a shortage of educational psychologists. It caused Mrs X distress, frustration and uncertainty. The Council has already apologised to Mrs X, which was appropriate. The Council has agreed it will provide Mrs X with a financial remedy to recognise the injustice caused.

The complaint

1. Mrs X complained the Council delayed issuing her child, Y, with an Education, Health and Care (EHC) Plan. Mrs X said it caused her distress, frustration and uncertainty. She said as a result, she had to educate Y at home. She wants the Council to provide her with a financial remedy to recognise the injustice caused.

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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 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)
3. 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)
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. 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

6. I spoke with Mrs X and considered information she provided.
7. I considered information provided by the Council.
8. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

9. Some children and young people with special educational needs and disabilities will have an Education, Health and Care (EHC) Plan. The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

The assessment process for an EHC Plan

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 EHC plans. 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 assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist. Those consulted have six weeks to provide the advice;
• if, after an assessment, the council decides not to issue an EHC Plan, it must notify the parents/carers within 16 weeks of the date it agreed to complete the assessment; and
• if the council decides to issue an EHC Plan after an assessment, the whole process should take no more than 20 weeks from the point the assessment was requested to the date the council issues the final EHC Plan.

What happened

11. Mrs X’s child, Y, was struggling at school. In mid-December 2022, Mrs X asked the Council to complete an EHC assessment for Y. The Council acknowledged Mrs X’s request.
12. At the beginning of April 2023, Mrs X contacted the Council and asked it for an update on the EHC assessment. The Council responded to Mrs X and said it had decided to carry out the assessment in early February 2023. It explained that in mid-February 2023, it had requested advice from an educational psychologist, but it remained outstanding. The Council apologised to Mrs X for the delay and explained there was an increased demand for EHC assessments which it was struggling to meet.
13. In May 2023, Mrs X complained to the Council about the delay.
14. The educational psychologist completed their assessment in early June 2023.
15. Between May and June 2023, the Council responded to Mrs X’s complaint and said:
• it recognised it had delayed completing the EHC assessment within statutory timescales and apologised to Mrs X for this. It made a decision at the beginning of June 2023 to issue Y with an EHC Plan;
• the reason for the delay was due to a shortage of educational psychologists and an increased demand for EHC assessments; and
• it had developed a recruitment process to improve its service. The Council was training more educational psychologists and working closely with other agencies to recruit locum educational psychologists. It said as a result, it was completing more EHC assessments than before.
16. In June 2023, the Council issued Y with a draft EHC Plan and by mid-October 2023, it issued the final EHC Plan. Mrs X remained unhappy with the delay and complained to the Ombudsman.

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Findings

17. We expect councils to follow statutory timescales as set out in paragraph ten of this decision statement. We are likely to find fault where there are significant breaches of those timescales.
18. Mrs X requested the Council complete an EHC assessment in mid-December 2022. The Council agreed to complete the assessment and issue Y with an EHC Plan. It should have issued the final EHC Plan by mid-May 2023 to meet statutory timescales. It did not do this and instead, issued the final EHC Plan in mid-October 2023. This was fault and a delay of approximately 24 weeks.
19. Much of the delay was caused by the Council awaiting advice from an educational psychologist, which was not completed until early June 2023. I recognise this was due to a national shortage of educational psychologists and not entirely within the Council’s control. However, the Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. The Council is currently taking reasonable steps to resolve the matter. As a result, I have not recommended the Council takes further steps to address the cause of the delay.
20. I cannot say whether the delay meant Y lost out on special educational provision. This is because the delayed educational psychologist advice reflected Y’s needs as they were at the time of the assessment, not necessarily as they would have been when it was originally due. I therefore cannot say what the educational psychologist advice would have been or what the Council would have taken from that advice for inclusion in Y’s EHC plan.
21. However, the delay caused Mrs X distress and frustration. It also caused Mrs X uncertainty about what the outcome would be. I recognise the Council has already apologised to Mrs X but this does not fully remedy Mrs X’s injustice, so the Council has agreed to my recommendation to further remedy the injustice.

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Agreed action

22. Within one month of the final decision, I recommend the Council pays Mrs X £500 to acknowledge the distress, frustration and uncertainty the delay caused her by failing to issue Y with an EHC Plan within statutory timescales. The remedy payment equates to £100 per month. The payment covers the period between May and October 2023, which is approximately five months.
23. The Council should provide us with evidence it has complied with the above action.

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Final decision

24. I have now completed my investigation. The Council was at fault. It has agreed to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman