Summary: Ms X complained the Council delayed completing her son, F’s Education, Health and Care (EHC) needs assessment in line with statutory timescales. The Council has failed to decide whether to issue F with an EHC plan within statutory timescales, caused by a delay in obtaining Educational Psychologist advice. The Council agreed to make a payment to Ms X to acknowledge the distress, frustration and uncertainty caused to her as a result of the delays. It also agreed to make a further payment to acknowledge the continuing injustice once it decides whether to issue F with an EHC plan.

The complaint

1. Ms X complained the Council has failed to complete her son, F’s Education, Health and Care (EHC) needs assessment within statutory timescales due to a delay in obtaining Educational Psychologist advice.
2. Ms X says the delay means the Council is, so far, 16 weeks late in making a decision about whether it intends to issue an EHC plan or not.
3. Ms X says the delay is causing frustration and uncertainty about F’s education.

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The Ombudsman’s role and powers

4. 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)
5. 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 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

8. I spoke to Ms X about her complaint and considered information she provided.
9. I considered relevant law, statutory guidance and our guidance on remedies which is published on our website.
10. Ms X and the Council had an opportunity to comment on the draft decision and I considered comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

11. Children with special educational needs may have an Education, Health and Care (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)
12. 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;
• if, following the EHC needs assessment the Council decides not to issue an EHC plan then it must notify the parent/young person within 16 weeks of the original EHC needs assessment request. In doing so the Council must provide the parent or young person with their right of appeal to the SEND tribunal.
13. 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 (EP). 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.
14. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement. The appeal can be against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
15. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended).

What happened

16. Ms X has a son, F who at the time of writing attends a mainstream primary school in year five. F has identified special educational needs as well as some physical difficulties and despite support from the school has not made much progress over the last three years. In April 2023 Ms X asked the Council to carry out an EHC needs assessment for F.
17. The Council agreed to carry out an EHC needs assessment. In line with statutory timescales this meant the Council should have made a decision about whether to issue F with an EHC plan by mid-August 2023. The Council told Ms X in June 2023 the EHC assessment would be delayed because of a shortage of Educational Psychologists (EP) in its area to provide advice.
18. Ms X complained to the Council in July 2023 about the EP advice delay which would cause a delay in F receiving an EHC plan. The Council responded in August 2023 and apologised for the delay which it said was because of a shortage of Educational Psychologists (EPs) and an unprecedented number of EHC needs assessment request over the last 18 months. The Council said it was unable to complete the EHC needs assessment until it had the EPs contribution. It said it would allocate one as soon as possible. The Council told Ms X it was working to address the shortage of EPs with ongoing recruitment and use of locum EPs where possible.
19. Ms X remained unhappy and complained to us.
20. Since complaining to us Ms X said an EP provided advice for F’s EHC needs assessment in November 2023. However, to date, the Council has still not made a decision whether to issue F with an EHC plan or not.

My findings

21. 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.
22. Following Ms X’s request for an EHC assessment the Council should have made the decision whether to issue a plan by the mid-August 2023. The EP report should have been available to the Council by July 2023 in order for it to have met this deadline. The EP report was not completed until November 2023 which is fault and has caused a delay in the Council deciding whether to issue F with a plan.
23. This service failure came about as the Council was unable to recruit enough EPs to meet demand. I have taken the mid-August 2023 as the start date for the injustice caused to Ms X as the Council should have decided whether to issue an EHC plan by then. At the time of writing the delay is 16 weeks. This delay will have a further knock-on effect, as, if the Council decides to issue an EHC plan it should have been issued by mid-September 2023.
24. I cannot say to what extent F has missed out on special education provision because of the delays. However, the delay in making the decision about whether to issue a plan is causing Ms X and F distress and uncertainty and has delayed Ms X’s right of appeal. Had the Council carried out the EHC needs assessment within statutory timescales F would have had a decision in time for the 2023/24 academic year.
25. I have made a recommendation to acknowledge this injustice up to the end of November 2023. I have made a further recommendation to ensure the Council provides a remedy for the continuing injustice from December 2023 until it either issues F’s final EHC plan or decides not to do so. Evidence provide by the Council on similar cases shows it is actively recruiting EPs in its area to address the shortage, so I have not made any further service improvement recommendations.
26. If the Council decides to issue F with a final EHC plan, Ms X will have a right of appeal to the Tribunal if she disagrees with the special educational needs, provision or placement specified in the EHC plan.

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Agreed action

27. Within one month of the final decision the Council agreed to pay Ms X £400 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s failure to complete F’s EHC needs assessment and decide whether to issue him with an EHC plan in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have completed the EHC needs assessment in August 2023 until the end of November 2023.
28. The Council agreed to continue providing a financial remedy to Ms X until the date:
• it decides not to issue F with an EHC plan, or
• it issues F’s final EHC plan.

This is to acknowledge the continued distress and frustration caused by the Council’s delays The Council should calculate the payment at £100 per month in line with recommendation above. The Council should make this payment to Ms X within one month of the date of either the decision not to issue an EHC plan or the date of the final EHC plan.

29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman