Summary: Ms X complained the Council failed to carry out an Education, Health and Care Plan needs assessment for her daughter, Y, in line with the timescales and failed to communicate with her. Ms X also complained the Council did not respond to her request for an occupational therapist report. The Council was at fault for failing to complete the needs assessment in line with the guidance. The Council will complete the needs assessment and make a symbolic payment to remedy the frustration caused to Ms X.

The complaint

1. Ms X complained the Council failed to carry out an Education, Health and Care Plan needs assessment for her daughter, Y, in line with the timescales set out in the statutory guidance and failed to communicate with her. Ms X also complained the Council did not respond to her request for an occupational therapist (OT) report as part of the assessment process, and delayed in responding to her complaint about the same. Ms X wanted the Council to complete the needs assessment process and obtain an OT report.

Back to top

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 significant injustice, or that could cause injustice to others in the future 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 there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

7. I considered the documents Ms X provided and discussed the complaint with her on the telephone.
8. I read the documents the Council provided in response to my enquiries.
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.

Back to top

What I found

Relevant legislation and guidance

Education, Health and Care Plan and needs assessments

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 the 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; 
• 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 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); and
• 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.

12. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:

• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

13. Those consulted have a maximum of six weeks to provide the advice.
14. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

Right of appeal

15. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;

• a decision that it is not necessary to issue a EHC Plan following an assessment; and
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.

16. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the tribunal. They do not have to agree to attend mediation.
17. Following mediation, and unless different timescales are agreed within the mediation meeting, the Council must:
• tell the parents it is starting a needs assessment within two weeks; and then
• tell the parents it has decided not to issue an EHC Plan in ten weeks; or
• issue the final EHC Plan in 14 weeks of the mediation agreement.

(SEN Regulations 42 and 44)

What happened

18. Y is a primary school student. She attends School A. School A requested the Council carry out an EHC needs assessment for Y at the end of February 2023.
19. The Council decided not to complete an EHC needs assessment for Y at the end of March 2023. Ms X disagreed with the decision and asked the Council to participate in mediation.
20. The Council said it reconsidered the matter when it received Ms X’s mediation request and overturned its decision. At the beginning of May the Council confirmed to Ms X it had started the needs assessment.
21. Ms X contacted the Council at the beginning of June as she had not been able to contact any case officers. Ms X said the Council was delaying the needs assessment and its communication was poor. Ms X asked the Council to obtain an Occupational Therapy (OT) assessment as part of Y’s EHC needs assessment. The Council said it would respond by mid-June.
22. The Council had not responded to Ms X by the agreed date so it progressed to stage one of the complaint process. The Council told Ms X it would respond by the following week.
23. The Council wrote to Ms X three weeks later. It said the delay in the needs assessment was caused by a shortage of Educational Psychologists (EP). It said it had taken action to improve its access to EPs and apologised for the delay.
24. Ms X told the Council she was dissatisfied with its response in July. She said the Council had not responded to her request for an OT assessment and it should have commissioned an independent EP assessment for Y.
25. The Council considered Ms X’s request for an OT assessment in July. Ms X said School A had identified Y had difficulties with some physical activities. The Council considered the information Ms X provided and information from School A. It decided not to get an OT report for Y. It told Ms X of its decision and said School A had access to an OT who it should ask for support and advice before seeking an assessment. Ms X told the Council that School A had requested an OT assessment for Y but there was a long waiting list.
26. The Council responded to Ms X’s complaint at the end of July. It agreed it had not carried out the needs assessment in line with statutory timescales. It said it should have issued a decision around whether to issue an EHC Plan for Y by 12 July (week 16) and it should have then issued a final EHC Plan by 9 August (week 20) which it had not done. It said the delays were caused by a national shortage of EPs to complete a psychology assessment as part of the needs assessment.
27. The Council said it could not say what injustice that caused Y, as the outcome of the needs assessment was not known yet. If it issued an EHC Plan for Y it would consider if she had missed any provision because of the delays and remedy it appropriately. It apologised it had not responded to Ms X when it said it would. It would contact Ms X when an EP had been identified.
28. The Council wrote to Ms X again in August and apologised for the frustration caused by the delay in the EHC needs assessment. It offered Ms X £200 to recognise the same. Ms X accepted that payment.
29. Ms X’s solicitor wrote to the Council in October raised the same complaint Ms X raised in July. They said the Council had not completed the needs assessment, had not obtained an EP report or an OT report in line with the guidance and legislation. The solicitor asked the Council to arrange an EP assessment before the end of the month.
30. The Council responded to Ms X’s solicitor. It said an EP assessment had been arranged for November and it would issue its decision on the EHC needs assessment by 8 December 2022. The Council apologised for the distress caused by its delay.
31. In response to my enquiries the Council said it had received the EP report and would make a decision on Y’s EHC needs assessment on 20 December 2023.
32. I reviewed the case officers communication with Ms X. The records show regular communication from July 2023 until November 2023.

My findings

Delay

33. The Council originally declined to assess Y for an EHC Plan, it then agreed to do so when Ms X requested mediation. The Council overturned its original decision without mediation and therefore it should have decided whether to issue an EHC Plan or not within the original timescale of 16 weeks, so by the 16 June 2023. In its complaint response the Council said it should have issued its decision on Y’s assessment by 12 July, which is incorrect. That was fault, however I do not consider the incorrect information caused Ms X any injustice. I have made a service improvement recommendation below.
34. Once it agreed to complete an assessment the Council had a duty to obtain EP advice before it could complete the assessment. The shortage of EPs to complete an assessment caused a delay in the EHC process. The Council has not yet issued its decision which is a delay of 28 weeks and is service failure, which is fault. The Council has recognised the delay during its complaint responses. The fault caused Ms X frustration and uncertainty and has delayed her right of appeal to the SEND tribunal if she disagrees with the Council’s decision. The Council made appropriate remedy suggestions in July; however it did not recognise the full delay, and the delay has continued for a further six months. I have therefore made additional recommendations below.
35. I cannot say what injustice the delay has caused to Y, however the Council has suggested an appropriate course of action to identify and remedy any injustice caused to her by its service failure if it issues an EHC Plan. It is open to Ms X to approach the Council about that matter.
36. The Council has already taken action to increase its Educational Psychology and Special Educational Needs Service capacity. This was agreed at a Council Cabinet meeting on 25 July 2023, the details of which are available on its website. I have therefore not made any additional service improvement recommendations on that point.

Occupational Therapy

37. The regulations say the Council must consider if it is reasonable to seek advice from a person that a parent or young person has requested in the assessment process. The Council considered Ms X’s request for an OT assessment, the information she provided and that provided by the school. The Council decided not to request an OT report. It explained its reasoning to Ms X. There was no fault in how the Council made that decision and therefore I cannot question its outcome. Ms X will also have a right of appeal to the SEND Tribunal about that matter.

Communication

38. The Council acknowledged that its communication with Ms X was poor up to its stage two response and has apologised, which is an appropriate remedy. It has improved its communication in line with its own recommendations since its stage two response. There was no additional fault in the Council’s actions.

Back to top

Agreed action

39. Within one month of this decision the Council will:
• pay Ms X a symbolic amount of £500 in addition to the £200 already paid to her for frustration caused by the 28-week (seven months) delay in issuing its decision on Y’s EHC needs assessment. This is calculated at £100 per month;
• issue its decision on the needs assessment and provide Ms X’s right of appeal to the SEND tribunal; and
• if the Council decides to issue an EHC Plan for Y it should do so within four weeks of the date of its decision.
40. The Council will continue to pay Ms X £100 per month until it makes its decision to issue an EHC Plan or not, or until it issues the final EHC Plan.
41. Within one month the Council will advise all staff involved in the EHC needs assessment process and who deal with SEN complaints, that where it overturns its decision not to assess for an EHC Plan without further evidence and prior to mediation, the original timescales from the date of request will still apply.
42. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

43. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and to improve Council service.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman