Summary: Mrs X complained the Council delayed assessing her child, Y, for an Education, Health, and Care (EHC) plan. The Council was at fault. It delayed conducting an assessment with an Educational Psychologist which meant it has not decided whether to issue an EHC plan for Y. The Council agreed to pay Mrs X a symbolic payment to acknowledge the distress, frustration, and uncertainty the matter has caused her. It agreed to make a further payment to Mrs X to acknowledge any injustice caused by further delay until it has decided whether it will issue an EHC plan to Y, or when it has issued a final EHC plan to Y.

The complaint

1. Mrs X complained the Council delayed assessing her child, Y, for an Education, Health, and Care (EHC) plan. Mrs X said the delays caused her distress, 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. 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. 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 considered the information Mrs X provided.
7. I considered the information the Council provided.
8. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Education, Health and Care Plans

9. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

The assessment process for an EHC Plan

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 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.
11. Following an assessment, if a council decides not to issue an EHC Plan, it must notify the parents/carers within 16 weeks of the date it agreed to complete an assessment.
12. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist. It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.

What happened

13. The information below is a summary of key events. It is not a comprehensive overview of everything that happened.
14. Mrs X has a child, Y, who attends a mainstream nursery in the Council’s area.
15. In early May 2023 Mrs X asked the Council to assess Y for an EHC plan. Mrs X said Y required a specialist nursery due to their needs.
16. At the start of June 2023, the Council wrote to Mrs X and told her it would assess Y. Mrs X said the Council told her there would be a delay in completing the EHC needs assessment because of a national shortage of educational psychologists.
17. Mrs X wrote to the Council in late July 2023. She told the Council she was dissatisfied because it had not commissioned an educational psychologist to assess Y’s needs. She complained it would be unable to meet the statutory deadlines in line with the SEND regulations and asked it to instruct an educational psychologist as soon as possible.
18. The Council responded to Mrs X’s complaint in early August 2023. It said:
• the delay in completing the EHC needs assessment was due to an increased demand of EHC Plan assessments and a national shortage of educational psychologists;
• it was using all resources available to secure private educational psychologists alongside Council employed educational psychologists; and
• it was currently making changes which involved increasing the number of staff to process assessment requests for EHC Plans however, it was still not able to respond to the rate of increased requests.
19. Mrs X remained unhappy and brought her complaint to us. Mrs X said the Council allocated an Educational Psychologist to Y in mid-September 2023. She said the Council has not yet told her whether it will issue an EHC plan for Y.

Analysis

20. The Council must adhere to statutory timescales relating to EHC needs assessments and EHC plans.
21. Mrs X asked the Council to complete an EHC needs assessment in May 2023. The Council agreed to complete an assessment in June 2023, but did not allocate an Educational Psychologist to Y until mid-September 2023. This was a significant delay and was fault. I acknowledge the reason the Council was unable to progress the EHC needs assessment was due to a lack of educational psychologists and an increase in demand for EHC plans. However, the Council’s delay in completing Y’s EHC needs assessment was still fault.
22. Subsequently the Council should have decided whether to issue an EHC plan for Y within sixteen weeks of Mrs X’s original request, by mid-August 2023. It did not do so, and that was fault.
23. The above faults caused Mrs X distress, frustration, and uncertainty about the provision Y will receive.
24. We have recently completed another investigation regarding this Council about delays in completing EHC needs assessments because of a lack of educational psychologists and increased demand for EHC plans. The Council provided evidence of service improvements including recruiting more educational psychologists (both internal and external), increasing funding for its SEND department, and an action plan to reduce its backlog of decisions. Therefore, I have not made recommendations about this because the Council is already implementing service improvements.

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Agreed action

25. Within one month of the final decision, the Council agreed to pay Mrs X £250 to acknowledge the distress, frustration, and uncertainty caused by failing to complete Y’s EHC needs assessment within statutory timescales. The remedy payment is £100 per month from mid-August 2023, when the Council should have completed its assessment and told Mrs X whether it would issue an EHC plan for Y, until late October 2023 when Mrs X told us the Council had still not made its decision. This is a 10-week delay.
26. The Council agreed to continue to pay Mrs X £100 per month until it informs her either that it has decided not to issue an EHC plan to Y, or until it issues a final EHC plan to Y. This is to acknowledge the continued injustice to Mrs X caused by the Council’s delay. The Council agreed to make the payment within one month of the date it either informs Mrs X of its decision not to issue an EHC Plan or when it has issued a final EHC Plan.
27. The Council agreed to provide us with evidence it has complied with the above actions.

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Final decision

28. I completed my investigation. I found fault and made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman