Summary: Ms X complained about the Council’s delay in completing her child’s (Y’s) education, health, and care needs assessment and poor communication. We found the Council at fault. It should apologise to Ms X and make payments to her to reflect the uncertainty, frustration and distress caused by the delays.

The complaint

1. Ms X complains the Council:
1. Delayed completing an Education, Health and Care (‘EHC’) needs assessment for her (‘child Y’) and did not keep her updated.
2. Did not consider all the available information (including medical reports) in reaching its decision not to issue an EHC plan for Y.
2. Ms X says the Council delayed her right to appeal its decision to a special education needs (SEND) tribunal. She says Y therefore missed out on educational provision, which affected her development and well-being. Ms X says she experienced frustration, and uncertainty about the outcome and trying to resolve her complaint with the Council.

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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. 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. 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)
5. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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).
7. 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

8. I considered information provided by Ms X and discussed her complaint with her. I also considered information provided by the Council. I considered relevant law and guidance and have referred to it where necessary in this statement.
9. Ms X and the Council now have an opportunity to comment on this draft decision. I will consider their comments before reaching a final decision.

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What I found

The law and guidance

10. Children with special educational needs may have an education, health and care plan (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 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:
• the child’s education placement and medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an educational psychologist. The Code says the psychologist should normally be employed or commissioned by the local authority.
13. The Regulations say the advice should be provided within six weeks, which is also the timescale for a local authority deciding whether it needs to draw up a plan. (SEN Regulations 2014, 8(1) and paragraph 9.17 Code of Practice).
14. The Council can only issue an EHC plan after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a plan or not.
15. If the Council decides not to issue an EHC Plan, it must tell the parent or young person within 16 weeks of the date the request for an assessment was made. The parent or young person can appeal this decision to the SEND Tribunal.
16. Where the SEND Tribunal requires the Council to make an assessment or reassessment, the Council must notify the parents that it will make an assessment within two weeks. Following the assessment or re-assessment, if the Council decides not to issue an EHC plan, they must notify the parent or young person within 10 weeks of the SEND Tribunal order.

Delays in educational psychology assessments in Surrey

17. The Council has explained that its Educational Psychology Service had seen a significant increase in referrals (since 2020) for EHC plans. It noted a national shortage of qualified educational psychologists and other key professionals who provide advice as part of the needs assessment process. As a result, there had been high demand for assessments but a reduced availability of EPs that undertake assessment work, which has caused delays.
18. The Council explained it has taken several actions to address the delays and improve adherence to the timescales in the Code. These included:
• Securing significant additional funding and resources to address the backlog of EHC assessments including recruitment of additional SEND officers.
• Prioritising statutory assessment work over other work.
• Advertising both locally and nationally to fill EP positions.
• Commissioning an external provider to support this work.
19. The Ombudsman’s Principles of Good Administrative Practice says we expect councils to act fairly and proportionately and to be open and accountable. This includes making timely decisions and explaining any delays in a reasonable timeframe.
20. The Ombudsman has issued guidance on remedies for EHC plans that are delayed due to the lack of sufficient educational psychologists. We usually recommend the Council pay £100 for each month where the decision to issue a plan is delayed while waiting for an educational psychologist’s report. This is a symbolic payment to recognise any frustration and uncertainty caused by the delay. It is not to remedy any loss of special education support to the child as they do not yet have an EHC plan.

What happened

21. In mid-December 2021, Ms X requested an EHC needs assessment for her child (Y). Y was seven years old at the time.
22. The records say the Council considered Ms X’s request at a panel but refused to assess.
23. Ms X then appealed to the SEND tribunal which overturned the Council’s decision and ordered an assessment of Y’s needs.

Y’s Education, Health and Care Needs Assessment

24. The available records show:
• On 11 August, the Council began the assessment process.
• On 15 August it contacted relevant professionals to obtain further information.
• The deadline for the advice including an educational psychologists (‘EP’) report was 26 September 2022.
• On 3 October, Ms X provided the Council with private occupational therapist (‘OT’) report and a speech and language therapist (‘SALT’) report. She also queried when the Council’s educational psychologist (‘EP’) would assess Y.
• On 10 October, the Council’s OT undertook an assessment with Y and provided their report.
• The Council made multiple enquiries about the EP report with its administrative support team. It was advised it could take some time due to a case backlog.
• On 2 November, a further SALT report was provided to the Council.
• Ms X made repeated enquiries with the Council about the EP report. The records do not show the Council proactively keeping Ms X informed of the reasons for the delay.
25. In early 2023, Ms X informed the Council Y was still finding it very difficult in school and refusing to engage. The available evidence shows:
• An EP visited Y at home and completed an assessment in early January 2023.
• On 23 January the EP report was completed and on 31 January it was shared with Ms X.
• On 15 March, the Council discussed Y’s case at a governance board. The board did not agree an EHC plan for Y. It decided her educational needs could be suitably provided within a mainstream school setting with SEND support arrangements.
• Around this time, Ms X and Y moved from the Council area to another part of the United Kingdom. The new local authority (‘NLA’) made enquiries with the Council.
• On 22 March the Council shared its board decision and copy of Y’s EHC file with the NLA.
• Ms X queried why the Council had not issued a decision about Y’s EHC plan. She said the NLA informed her the Council had reached a decision in March but not updated her. She said, this was delaying her appeal rights and affecting Y’s well-being.
26. In early April the Council wrote to Ms X to say it would not be issuing an EHC plan for Y. The letter did not include information about Ms X’s rights of appeal.
27. On 12 May the Council issued a corrected decision letter including the appeal rights information.
28. The Council then advised Ms X that she would need to progress the EHC process with the NLA as its duties ended when she moved away.

Mrs X’s complaint

29. Ms X complained to the Council and included the issues she has raised with us.

The Council’s responses

30. In its stage one response, the Council explained:
• Y’s EHC needs assessment was delayed (between 26 September 2022 and 30 January 2023) -approximately four months, due to a national shortage of Educational Psychologists (EPs). This impacted the Council’s ability to complete the EHC assessment process. It apologised for the delay.
• Y’s case was not considered at the first available governance board meeting on 14 February 2023, after the EP report. This was because Y’s updated school reports were not available. Once these were obtained Y’s case was allocated to the next available date on 15 March.
• At the governance board meeting, it became apparent that Ms X and Y had moved. The Council therefore followed the SEN guidance to complete the process and reach a decision about whether it would issue an EHC plan.
• However, Ms X could request the NLA reconsider the Council’s decision or appeal the decision if she wished.
• It accepted it failed to keep Ms X fully updated and provided incorrect information for which it apologised.
31. In its final response the Council explained:
• It accepted there had been a delay in Y’s EHC needs assessment.
• It apologised again and offered Mrs X £100 compensation.
32. Unhappy with the Council’s response, Ms X approached the Ombudsman.

Council’s response to our enquiries

33. The Council explained:
• Its OT and SALT teams considered Ms X’s privately commissioned reports but did not consider Y required further assessment. However, they recommend an occupational therapy report which was completed as part of Y’s EHC assessment.
• It explained the reasons for the delay in obtaining Y’s EP report and the measures it was talking to address the problem as set out at paragraphs 17-18 (above).

Analysis

34. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code, and we are likely to find fault where there are significant breaches of timescales.
35. The records show the Council started Y’s EHC assessment on 11 August 2022, after the SEND tribunal decision. The Council’s records confirm the educational psychologist’s report should therefore have been available by 26 September to comply with the statutory six-week time frame. However, the evidence shows the EP report was not completed and available until 23 January- a delay of around four months. I note the Council’s explanation of the problems facing its Educational Psychology Service. I also note its commitment to improving services. But the delay was not in line with the Code and, is service failure, which caused Ms X uncertainty and frustration about the outcome.
36. The Council also failed to decide if it would issue an EHC Plan for Y within the statutory time limit. It should have issued a decision within 16 weeks of the start of the assessment process- by 5 December 2022. It did not issue a valid decision letter to Ms X until 12 May 2023. This is a delay of approximately five months. This delay is also not in line with the Code and is service failure which caused Ms X uncertainty, frustration and distress about the outcome. It also meant there was a delay to her rights to appeal the Council’s decision to the SEND tribunal.
37. I note the Council did not send Ms X any formal updates to explain the reasons for the delay in the EHC assessment process. The Councill also accepted this position in its complaints response. I find its failure to keep Ms X informed about the reasons for the delay is poor communication and inconsistent with our principles of good administrative practice, which advise Council’s to maintain effective communication and explain any delays in a reasonable and timely manner. Ms X therefore had to send multiple emails requesting updates and eventually complained to the Council about this issue.
38. Ms X said the Council failed to consider her privately commissioned SALT and OT reports. However, the evidence shows the Council properly considered these but did not believe further assessment was necessary. We therefore cannot question the merits of a decision taken by the Council exercising its professional judgment. I do not find any fault in relation to this aspect of Ms X’s complaint.
39. Normally where we find fault, we go on to recommend an organisation makes improvements to its service. However, in this case I have not made any such service improvements, as I am satisfied at this stage, that the Council has fully considered the matter and is taking reasonable service improvement steps to address the problem.

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Agreed action

40. To remedy the personal injustice caused, within one month of my final decision, the Councils should:
• Write to Ms X and apologise for the delay in completing Y’s EHC assessment and its subsequent delay in deciding it would not issue an EHC plan for Y and any uncertainty, frustration and distress caused.
• Make a symbolic payment of £600 to Ms X to acknowledge the distress, frustration and uncertainty caused to her by the delay in completing Y’s EHC assessment and the Council’s failure to decide if it would issue an EHC plan for Y within statutory timescales.
• Make a symbolic payment of £150 to Ms X to acknowledge her time and trouble in resolving her complaint.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I find fault which caused injustice to Ms X. I have made recommendations to address the injustice which the Council has agreed.
43. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman