Summary: Mrs X complained the Council caused delays during the Education, Health and Care needs assessment for her son. The Council delayed the assessment. The Council will apologise and make payment to recognise the injustice caused by the delay.

The complaint

1. Mrs X complained the Council failed to carry out her son, C’s, Education, Health and Care (EHC) needs assessment in a reasonable timeframe.
2. She says this has affected his mental health and education.

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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. 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 have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. Mrs X and the organisation 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

Law and guidance

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made 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 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 needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• 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 (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan.

10. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.
11. Those consulted have a maximum of six weeks to provide the advice.

Key events

12. C has autism and was attending a mainstream school in year two when his school made a referral for a EHC needs assessment. When the referral was made in early January 2023 C was receiving 32.5 hours of adult support because he could not cope in the classroom.
13. The school provided documents in support of the needs assessment request. This included a copy of a psychologist report which it had obtained for C in November 2022.
14. The Council agreed to carry out an EHC needs assessment following the request. It asked for an educational psychologist report to help carry out the assessment in early January. This report was not completed until late June 2023.
15. Mrs X raised a complaint about the delay in the needs assessment. The Council responded in mid-June. It accepted there was a delay in C’s EHC needs assessment. It explained that this was caused by a shortage of available educational psychologists. It assured Mrs X it was addressing the issues of the shortages and that a report for C should be available shortly.
16. The Council issued a draft EHC plan for C in early July 2023. It issued a final EHC plan to Mrs X in early August 2023.
17. A further EHC plan was issued in October 2023 when a place at a special school became available for C.
18. During our investigation the Council has explained that it has been able to hire more educational psychologists as part of its plan to reduce wait times.

Findings

19. The Council received the assessment request in early January and agreed to carry out an assessment. The Council had 20 weeks to carry out its assessment. The statutory deadline was therefore early May. It issued the final plan outside of this deadline as it did not send Mrs X the decision until early August.
20. The availability of an educational psychologist caused this delay. I have considered whether the Council acted to ensure that this was made available as soon as possible. During this investigation the Council has explained it could not use the report obtained already because it did not have all the information needed. It is reasonable for the Council to decide to seek a further educational psychologist report. However, the Council did not take suitable steps to find an alternative educational psychologist to avoid any unnecessary delays. As such the delay in carrying out the needs assessment is fault.
21. The Council has accepted fault and has taken steps to address the cause. It has sought to recruit more staff to prevent further delays. This is an appropriate remedy to prevent reoccurrence in the future.
22. The delay in issuing a final decision has left Mrs X worried and anxious that her son was not receiving the support he needed. She is concerned this has impacted his education. This warrants recognition.

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Agreed action

23. Within one month of the final decision the Council will:
• Apologise to Mrs X for the distress caused by its delay in carrying out its assessment and in issuing a final decision outside of the statutory timescales.
• Pay Miss X £300 for the injustice caused by the delay in issuing a final decision. This is equivalent to £100 per month.
24. The Council should provide us with evidence it has complied with the above actions.

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Final decision

25. I have completed my investigation. I have found fault leading to injustice. The Council will take action to address the injustice caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman