Summary: Miss X complained about significant delays in the education, health and care plan process for her son. She also complained about the Council’s communication and said it refused to make reasonable adjustments. We find the Council was at fault for poor communication and significant delays in the process. This caused significant distress to Miss X and her son went without specialist provision. To address this injustice caused by fault, the Council has agreed to several recommendations.

The complaint

1. The complainant, Miss X, complains about significant delays in the education, health and care plan process for her son. She also complained about the Council’s communication and said it refused to make reasonable adjustments.
2. She said this has caused significant distress to the family and caused her son to miss provision.

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The Ombudsman’s role and powers

3. 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)
4. 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.
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)

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How I considered this complaint

6. I considered all the information provided by Miss X and the Council.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Timescales and process for EHC assessment

8. 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 the following: 

• 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; and
• the council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

Summary of key events

9. The Council received a request for an EHC needs assessment for Miss X’s son, B, on 2 November 2022. On 12 December 2022 the Council agreed to assess B. It requested the relevant professional advice.
10. After Miss X asked for an update, the Council said in February 2023 it was still waiting for an educational psychologist (EP) report before it could proceed.
11. Miss X said she had already provided an EP report. But the Council said it has a duty to seek its own report from professionals it deems appropriate. It said the reports needed to provide clear outcomes and provisions required to support B.
12. Miss X asked the Council to explain why the private EP report she had sought was not sufficient. The Council said it would only use advice within reasonable timescales i.e., six months and said Miss X’s report was completed in December 2021. It also said the report did not outline suggested outcomes or provisions.
13. In March 2023, the Council contacted the EP who completed the private report. It asked if the EP had capacity to create outcomes and specific provision. This was because Miss X had asked the Council to use this report as part of the assessment. But the EP said they could not offer what had been suggested.
14. Miss X contacted the Council in the same month and asked for an update. The Council said it was still awaiting an EP assessment. But said it would now look to commission an independent EP assessment.
15. In April 2023 the Council told Miss X it had identified an independent EP. It detailed how the EP carried out their work and stated this would be remote. It asked if Miss X was happy with this.
16. Miss X raised some concerns about this with the Council. In response the Council spoke with the EP who said:
• since the Covid-19 pandemic they have undertaken many remote assessments and have had positive feedback from parents;
• an EHC needs assessment is far more than just meeting with B. They will talk with Miss X, review all the reports, including speaking with the private EP who has already seen B; and
• they would be happy to speak with Miss X.
17. Miss X emailed the Council in May 2023. She said she had agreed to go ahead with the remote EP assessment in April 2023. But said she had heard nothing since.
18. The Council apologised for the delay. It said there had been some issues with contracts for commissioning external EP’s. It said this had led to the decision that it could no longer commission this. The Council agreed to liaise with the senior EP to determine how soon B could be allocated an EP.
19. An EP assessment was later completed and the Council told Miss X in July 2023 it had received the EP report.
20. On 2 August 2023, the Council agreed that B required an EHC Plan. It said it would write a draft and share this with Miss X as soon as possible.
21. Miss X contacted the Council early September. She said she would like a letter sent to her stating the outcome of the EHC needs assessment. She also asked for an update on the draft.
22. The Council asked Miss X to accept the email as confirmation B would be issued an EHC Plan. It said the draft plan was being checked prior to sending out. The Council also asked Miss X if she had school preference or whether she wanted to continue with home education.
23. Miss X emailed the Council to check if the case officer had received her emails regarding details about education other than at school. In response the Council asked for B’s name and date of birth so it could look into it.
24. A new case officer contacted Miss X in October 2023 stating the previous officer had left.
25. The draft EHC Plan was issued on 16 October 2023.
26. Miss X told the Council she was not happy with the quality of the draft plan. She said she had now hired a legal advisor who would deal with matters going forward.
27. The Council offered to meet with Miss X to discuss the amendments she would like done. Miss X agreed to this but said only once her legal advisor had looked at the draft plan.
28. Miss X requested an extension to submit her amendments on the draft plan which the Council agreed to. The EHC Plan was finalised 29 December 2023.

complaint to the Council

29. Miss X complained in February 2023. She said:
• there had been significant delays in the process; and
• she paid for a private EP assessment that was completed in 2021.
30. In response the Council said:
• it apologised for the delays;
• there is a national shortage of EP’s; and
• its service was operating a fair system of allocations based on the chronological order of assessment timescales across the service;
• its team has requested a more updated report from its EP service. The team did contact the private EP asking if they could see B again and add outcomes/provision to the report. But this was not possible.
31. Miss X requested the Council escalate her complaint as she remained unhappy. In response the Council reiterated that its stage one response was upheld with an explanation. It also said the Council had sought an independent EP assessment who could carry out a remote assessment. But said Miss X wanted a face-to-face assessment.
32. Miss X further complained to the Council in October 2023. She said:
• there had been delays in finalising the EHC Plan;
• no one had contacted her to let her know the case officer had left;
• she was always asking for updates;
• the process had been exhausting;
• she had emailed the case officer in September asking about the temporary funding for children waiting beyond 20 weeks for a final EHC Plan. But said she had no response; and
• on top of the stress, she had recently been diagnosed with autism.
33. The Council responded and said it had been registered as a stage one complaint. It apologised for the delay in issuing the plan and said when the case officer left the service, it was not clear the plan had not been issued.
34. Miss X responded to this and said she had already followed the stage one and two process. She said she wanted the LGO to investigate the complaint.

Analysis- was there fault by the Council causing injustice?

35. There is service failure due to the Council’s inability to commission an EP. The LGSCO is aware of the problems arising from a national shortage of EPs, which in turn has created delay in the completion of B’s assessment.
36. As there is fault in this case, we have to consider the injustice caused to Miss X and B and provide a remedy. The delay frustrated Miss X’s right of appeal and delayed provision being in place for B.
37. Miss X asked the Council to use the private EP report she had provided. But the Council said it was not sufficient as it had been completed in 2021 and did not include outcomes of provision. The Council said it needed to seek its own report. This is a decision the Council was entitled to take and I cannot criticise it.
38. We recognise the Council did contact the private EP to see if they could create outcomes and specific provision. But the EP could not provide this.
39. We also recognise the Council did find an independent EP who could carry out a remote assessment in April 2023. But the following month Miss X asked the Council for an update as she said she had confirmed she was happy to go ahead with the remote assessment. But said she had no response.
40. The Council told Miss X there had been some issues with contracts from commissioning external EPs. It said it could no longer commission external EPs to carry out assessments. We would have expected the Council to have communicated this to Miss X sooner. This is fault.
41. I acknowledge the proactive steps the Council is taking to try and resolve the lack of EP’s. This includes:
• increasing the substantive full-time equivalence of EP’s;
• reviewing pay and conditions to attract EP’s;
• undertaking recruitment campaigns including recruiting from oversees;
• increased numbers of trainee EP’s and assistant EP’s to supplement EP’s work; and
• measures are in place so if an EHC needs assessment reaches 20 weeks and the process remains incomplete, then temporary funding will be paid to the school where the young person is on roll. This is so additional and sustainable support can continue to be made available.
42. Miss X told us the Council failed to make reasonable adjustments. She told us she likes to have a paper trail and finds it difficult with emails. When the Council agreed to issue a plan, Miss X asked it to send her a letter detailing the outcome. The Council responded and said ‘please accept this email as confirmation B would be issued with an EHC Plan’. We could not criticise the Council for this. This is because I have seen no evidence to suggest Miss X made the Council aware she preferred a paper trail over emails.
43. Miss X said she spent a lot of time chasing the Council for updates. The Council said in August it would issue a plan and Miss X asked the following month for an update. The month after, the Council did not tell Miss X the previous case officer had left until Miss X contacted it. This is fault. Miss X had sent emails to the previous case officer as she was not aware. This meant she spent unnecessary time and trouble in contacting the Council for a response. This caused her significant distress.
44. After the draft EHC Plan was issued, Miss X told the Council she was unhappy with the quality of it. She said she had hired a legal advisor. This was an advocacy service.
45. Miss X told us she expects the Council to reimburse her for this cost. But we would not expect the Council to do so. While I understand Miss X was not happy with the draft plan, the Council offered to meet with her to discuss this. But Miss X chose to seek a paid service.
46. In Miss X’s complaint in October 2023, she said she had asked the case officer about the temporary funding for children waiting beyond 20 weeks for a final EHC Plan. But said she had no response. The Council told us this funding would be provided to school’s settings to ensure additional and sustainable support could continue to be available when an assessment exceeds the 20-week timescale.
47. But it said B was home educated and therefore not attending a setting prior to the request for assessment or during it. Therefore, this was not applicable to B. But we would have expected the Council to have communicated this to Miss X at the time. This is fault.

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Recommended action

48. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Miss X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Miss X £900 for the educational benefit of B, to recognise the impacts of its failings on B’s education. This is to acknowledge the two school terms B went without the provisions in his EHC Plan due to delays. In determining this figure, I have taken into account B had access to education, but not the specialist provision; and
• pay Miss X £500 to acknowledge the distress caused to her by the faults identified in this statement.
49. Within two months the Council should remind relevant officers of the importance of providing clear communication and responding in a timely manner.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman