Summary: We uphold this complaint. There was a delay in obtaining advice from an Educational Psychologist which caused delay in issuing Y’s final Education, Health and Care Plan. This caused Ms X avoidable confusion, frustration and uncertainty. The Council will apologise and make a symbolic payment of £300.

The complaint

1. Ms X complained about delay in the Education Health and Care Plan (EHC Plan) process for her son Y. She applied for an EHC Needs Assessment (EHCNA) in Autumn 2021. There was delay due to a lack of Educational Psychologists (EPs) and by the time the Plan was issued, all local special school places had been allocated.
2. Ms X said Y eventually got a school place, but he was out of education for a term and she suffered avoidable distress.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. Ms X complained to us in August 2023. Matters from August 2022 are not late and I have investigated them. I have also investigated from December 2021 when Ms X asked for an EHCNA because Y’s case appears to consist of a continuing chain of events causing delay.
5. 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)
6. 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)
7. 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

8. I considered the complaint to us, the Council’s response to the complaint and documents in this statement. I discussed the complaint with Ms X
9. 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

10. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.

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 guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says: 
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 

• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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).
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

12. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice. 

What happened

13. Y is autistic. He was due to start Reception in September 2022. Ms X requested an EHCNA on 11 December 2021.
14. The Council agreed to carry out an EHCNA on 21 January 2022. It referred Y for an EP advice on the same day, asking for this no later than 4 March. The EP issued their advice on 30 May. The Council issued a draft EHC Plan on 17 June.
15. The Council consulted with four schools in July. They all declined to offer Y a place because they were full.
16. The Council issued Y’s final EHC Plan on 3 August 2022. It issued an amended Plan on 13 October 2022. Section I named a maintained special school from January 2023.
17. Ms X complained to the Council. Its two responses said:
• The delay was due to a lack of EPs and it accepted the timescales were not met and was sorry;
• Schools it had consulted were all full. It upheld the complaint; and
• The EHC team was working on a package of support.
18. The Council consulted with two schools in September and October 2022. One of the schools offered Y a place from January 2023 (it had refused a place during the previous consultation.)
19. Ms X confirmed Y started school part-time in January 2023 as would have been the case had he started at the correct time (September 2022). She said he began full time education after February half term. She said the Council also offered a tutor for the Autumn term, but she felt this was not appropriate as he was only four.
20. The Council told me the educational provision for Y between September 2022 to January 2023 was:
• Speech and Language Therapy as outlined on his EHC Plan
• Occupational Therapy (as per Plan)
• Sensory play at the Hub (9 sessions)
• Music sessions (6 sessions)
• Animal therapy (6 sessions)
21. Ms X said she had to put together quotes for the above based on his EHC Plan and the items in the last paragraph are what she and the Council agreed on.
22. The Council told me it had recruited a senior EP to start in September 2023 and a newly qualified EP. It has 5 vacant posts at present and has approached everyone on Linkedin who is an EP. The Council also uses locum EPs and has taken on two new locums. It is in discussions with a recruitment agency.

Findings

23. There was a failure to act in line with the statutory timescales described in paragraph 11, which was fault. In particular:
• The EP advice should have been available within six weeks of the request so by 3 March. It wasn’t available until 30 May 2022. A delay of almost two months; and
• The final EHC Plan should have been issued within 20 weeks of Ms X’s request for an EHCNA, so by 30 April 2022. It wasn’t available until 3 August. A delay of three months.
24. This caused avoidable confusion, frustration, uncertainty, a delay in appeal rights and a delay in consulting with potential school placements.
25. The Council offered a bespoke package described in paragraph 20 as well as tuition, which Ms X declined (the tuition). So I do not consider he has a loss of education.

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Agreed action

26. The Council will, within one month of this statement, apologise and make Ms X a payment of £300 to reflect the avoidable uncertainty and frustration caused by the three-month delay in issuing Y’s final EHC Plan.
27. I am satisfied the Council has in place a plan for increasing EP capacity to ease the delay in the system highlighted in this statement. So I have not recommended any changes to the Council’s procedures.
28. The Council should provide us with evidence it has complied with the actions in paragraph 26.

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Final decision

29. We uphold this complaint. There was a delay in obtaining advice from an Educational Psychologist which caused delay in issuing Y’s final Education, Health and Care Plan. This caused Ms X avoidable confusion, frustration and uncertainty. The Council will apologise and make a symbolic payment of £300.
30. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman