Summary: There was service failure by the Council. An assessment for an Education, Health and Care Plan was delayed by five months due to a shortage of Educational Psychologists. There was no loss of education during the delay so a payment towards the complainant’s frustration and an apology remedies the injustice.

The complaint

1. The complainant, who I shall call Mrs X, complains there have been delays in the assessment process for an Education, Health and Care Plan.
2. Mrs X has said the delays have caused her stress in making decisions when applying for a new school place.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. 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)
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 read the papers put in by Mrs X and discussed the complaint with her.
7. I considered the Council’s comments about the complaint and any supporting documents it provided.
8. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

9. 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. 

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 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 complete 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 issue of the final EHC Plan must take no more than 20 weeks. 

11. Mrs X asked the Council for an EHC Plan needs assessment on 23 May 2023. The Council agreed to assess on 29 June 2023.
12. The Council issued the final EHC Plan on 14 February 2024. The Council accepts there was delay in the EHC Plan needs assessment. This should take 20 weeks to complete. The whole process took 39 weeks from Mrs X’s first request.
13. The Council has explained the delay was due to a national shortage of Educational Psychologists. I consider this delay to be service failure, as the time taken by the Educational Psychologists was outside the Council’s control.
14. To remedy the injustice from the delay, I propose a financial remedy. Our current guidance recommends a £100 payment for each month an EHC Plan is delayed during the needs assessment process. The delay was 19 weeks. So, the remedy payment would be for 5 months, a payment of £500. This payment does not take account of loss of educational provision, this is for the frustration caused by the delay in the assessment process.
15. Mrs X’s child was in school throughout. So, I do not propose a remedy for loss of education. The Council has explained that it did provide extra high needs funding for the school during the EHC Plan assessment process. This action by the Council was positive but we cannot know if the high needs funding was spent directly on the Mrs X’s child. The action the Council took may limit injustice in the long term as the extra support may mean less intensive support in the future. But, that is not the injustice we are remedying by the financial remedy for Mrs X’s frustration.
16. The Council has explained there is a two-pronged plan in place for the Council to access and recruit more Educational Psychologists (EP’s). It will recruit permanent in-house EP’s and continue to make use of the Associate EP model, where EP’s in private practice are employed by the Council on a case-by-case basis with the sole focus of completing statutory psychological advice. The Council has built up a ‘bank’ of Associate EPs, meaning that at any given time maximum use is made of the Associate EP capacity, within budgetary restrictions.

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Agreed action

17. Within one month of the date of the decision on this complaint, the Council should:
• Apologise to Mrs X.
• Pay Mrs X £500.
18. The Council will, within three months of the date of the final decision:
• review its processes to ensure it issues final EHC Plans within statutory timescales;
19. The Council should provide us with evidence it has complied with the above actions.

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Final decision

20. I have completed my investigation of this complaint. This complaint is upheld. The actions outlined above remedy the injustice to the complainant and her family.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman