Summary: Miss X complained the Council delayed completing her child, Y’s, Education, Health and Care (EHC) plan. The Council was at fault for the delay caused by a shortage of Educational Psychologists. The Council has agreed to apologise and pay Miss X £400 to recognise the frustration and uncertainty the delay caused her.

The complaint

1. Miss X complained the Council delayed completing an Education, Health and Care (EHC) Plan for her child Y. Miss X said the delay meant Y did not receive all the education and support they needed and caused Miss X uncertainty and frustration.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

7. I have considered:
• the information provided by Miss X.
• information provided by the Council in response to our initial enquiries.
• the relevant law and guidance and the Ombudsman's guidance on remedies.
8. Miss X and the Council had the opportunity to comment on my draft decision. I considered any comments I received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

9. Children 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.
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 (EP). Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC plan after an assessment, it should prepare a draft EHC plan and send it to schools that may be able to accept the child or young person and meet their needs. Schools should respond to the consultations within fifteen calendar days; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC plan.
11. There is a right of appeal to the SEND Tribunal about the educational provision and placement named in a child’s EHC plan. This appeal right is only engaged once the final EHC plan has been issued.

What happened

12. Miss X has a child Y who attends a mainstream primary school. In late November 2022 the school asked the Council to carry out an EHC needs assessment. The Council wrote to Miss X in January 2023, seven weeks after the school’s request, to confirm it had decided to assess Y. In the letter it explained it had not yet allocated an Education Psychologist which may delay the process.
13. In July 2023 Miss X complained to the Council about the delay in the assessment. The Council responded in early August and upheld the complaint. It apologised for the delay. It advised it had issued a draft EHC Plan in late July and that Miss X had provided her views on the plan. It advised it would continue to move forward with the process.
14. In August 2023 the Council issued Y’s final EHC plan. At section I the plan stated ‘a mainstream primary school’. In response to our initial enquiries the Council advised it had arranged a mediation meeting with Miss X in late September 2023 and consulted some schools.

Findings

15. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. When Miss X requested an EHC assessment the Council should have made the decision whether to assess within six weeks. It took a week too long, which was fault.
16. The Council then had to progress the assessment ‘in a timely manner’ so it could issue Y’s final EHC plan within 20 weeks of the assessment request. However, EHC plan assessments must include advice from an EP, which should be received within six weeks of the Council requesting it.
17. There is a national shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. Y’s wait to be seen by an EP meant their EHC assessment took longer than the statutory timescales allow for. The Council was at fault as Y’s plan was issued after 36 weeks, which is 16 weeks longer than the statutory timescales allow for.
18. On similar recent Ombudsman cases, the Council provided us with details of the action it is taking to address the shortage of EPs. This included:
• constantly looking to hire new EPs and has successfully hired some;
• introducing overtime;
• re-designing its department;
• using independent EPs to act as “Associate EPs”, who produce advice to the standard required by the Council; and
• offering virtual assessments to reduce how long each assessment takes.
19. The Council’s plan of action demonstrates its efforts to mitigate the impact of the nation-wide issue on its service users. We will continue to monitor the effectiveness of this through our casework.
20. I cannot say to what extent Y missed out on provision because of the delays. This is because the EP advice reflected Y’s needs at the time of the assessment, not necessarily as they would have been when it was originally due. I therefore cannot say what the EP 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 in the EHC assessment caused Miss X uncertainty and frustration while she awaited Y’s final EHC plan and meant her appeal right was delayed.

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Agreed action

22. Within one month of the final decision, the Council has agreed to apologise and pay Miss X £400 to acknowledge the frustration and uncertainty she experienced due to the delay in completing Y’s EHC plan. That equates to around £100 per month for the delay.
23. The Council should provide us with evidence it has complied with the above actions.

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Final decision

24. I have completed my investigation. On the evidence considered the Council was at fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman