Summary: There was service failure and delay by the Council in failing to complete an assessment for an EHC plan within the statutory timeframe. This has delayed provision being in place in time for a child’s transition into school and has caused distress, uncertainty, time and trouble. In addition to service improvements the Council has already made, it will apologise to Ms X and make a symbolic payment to acknowledge the impact of delay.

The complaint

1. Ms X complains about delay in completing a statutory assessment for an Education, Health and Care (EHC) plan and in particular about a shortage of educational psychologists available to provide reports for statutory assessment.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. 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

4. I have considered information provided by Ms X and the Council including:
• Advice obtained.
• Complaint correspondence.
• Council’s response to my enquiries.
5. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. Ms 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 guidance

8. The Act and Regulations set out the way councils should assess the special educational needs and disabilities of children and young people. The Code provides guidance to councils about how to do this.
9. Councils must decide whether to carry out an EHC needs assessment within six weeks of receiving a parent request.
10. Regulation 6 sets out what professional advice a Council must seek. Educational Psychology advice is a mandatory part of the assessment process.
11. Professionals should provide their advice within six weeks of a request from the Council to do so.
12. Once the Council has received all relevant advice it must decide whether an EHC plan is required. It must do this within sixteen weeks of the request. It must issue a final plan within twenty weeks of receiving the request to assess.

What happened

13. The Council received the request for statutory assessment in late February. The maximum time frame for completing the assessment and issuing a final plan was by mid-July. Ms X’s child moved from pre-school to primary school in September 2023, so it was important to Ms X the plan was in place before this transition.
14. The Council was unable to meet this timescale. It said this was due to a combination of high staff absence and a shortage of Educational Psychologists to meet the current volume of requests for assessment.
15. Ms X said she asked the Council to use an independent Educational Psychologist, or to allow her to commission one and refund the costs. Ms X says the Council told her it would not accept a private report and wanted her child to be seen in their new setting in September.
16. The Council told me it has taken several measures to increase educational psychology capacity and already uses independent staff. It has increased trainee posts, has restructured the team to include Assistant Educational Psychology posts, and offered retention incentives. The Council told me it has approximately one hundred children waiting for an assessment and has commissioned additional independent capacity for the next year.
17. Ms X and the Council told me the Educational Psychologist did see Ms X’s child in September 2023 and the Council issued a final plan in December.

Analysis

Fault

18. We expect councils to follow the statutory timescales set out in the law and Code which is statutory guidance.
19. The Council has accepted service failure in this case. It is required by law to decide whether to issue a draft EHC Plan within sixteen weeks and produce a final Plan within twenty weeks. It exceeded this timescale by five months.
20. We note the Council’s explanation of the problems facing its educational psychology service, but the delay was not in line with the law and the Code and is service failure.
21. The Ombudsman cannot insist councils accept the findings of a private report obtained by parents, this is at the discretion of the Council.

Injustice

22. Ms X has been put to distress, uncertainty and additional time and trouble chasing the Council to complete the statutory process.
23. Ms X says the delay has meant not all special educational provision is in place at the new school and this is having an adverse effect on her child.

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Agreed action

24. To remedy the injustice resulting from the identified fault in this case the Council will, within four weeks of my final decision, take the following action:
• Apologise to Ms X for the faults identified in this decision statement.
• Pay Ms X a symbolic payment of £500 to acknowledge the impact of the delay.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed my investigation. There was service failure and delay by the Council in failing to complete an assessment for an EHC plan within the statutory timeframe. I am satisfied the above agreed actions and measures outlined by the Council to address the waiting list are a satisfactory resolution to the complaint. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman