Summary: The Council delayed carrying out an Education, Health, and Care Needs Assessment for Ms X’s child, Z. This was due to the shortage of Educational Psychologists. We are satisfied with the service improvements already being carried out by the Council to resolve this issue. However in recognition of the injustice caused to Z and their family, the Council has also agreed to pay Ms X £100 for each month of delay in concluding Z’s needs assessment.

The complaint

1. Ms X complained the Council delayed in carrying out an Education, Health and Care Needs Assessment (EHC Needs Assessment) for her child, Z.
2. Ms X said this has caused uncertainty and distress to Z and their family.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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.
6. The courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. 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)
8. 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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What I have and have not investigated

9. Ms X complained about events that started in January 2023. I have not investigated any events between 20 January 2023 and 20 July 2023.
10. This is because Ms X appealed the Council’s 20 January decision not to assess Z to the SEND Tribunal. The Council changed its mind on 20 July 2023 before the Tribunal heard the appeal and decided it would assess.
11. As the period from 20 January 2023 to 20 July 2023 carried a right of appeal to the Tribunal, my investigation began from the Council’s later decision to assess, on 20 July 2023. I have set out our jurisdiction and recent caselaw on this issue at paragraphs 5 and 6.

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How I considered this complaint

12. I considered the information provided by Ms X and the Council.
13. I considered the relevant law and guidance as set out below.
14. I considered our Guidance on Remedies.
15. I considered all comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

EHC Needs Assessment timescales

16. 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 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; and
• 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).

Professional advice during EHC Needs Assessments

17. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes but is not limited to: 
• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an Educational Psychologist (EP). 
18. Those consulted have a maximum of six weeks to provide the advice. 

What happened

19. Ms X asked the Council to complete an EHC needs assessment for her child, Z. The Council initially declined to complete the needs assessment. Ms X appealed to the SEND Tribunal about that decision.
20. The Council conceded prior to the Tribunal hearing and on 20 July 2023 the Council decided it would carry out an EHC needs assessment for Z.
21. In line with the Code, the Council sought information from an Educational Psychologist to inform its decision making and should have received this within six weeks of its request.
22. However due to the national shortage of these professionals, Z still was not seen by an Educational Psychologist several months later, meaning the Council could not decide within the statutory timescales whether Z required an EHC Plan.
23. Z is currently attending a mainstream school where Ms X says Z is struggling and becoming anxious. Ms X said this in turn is having an impact on their family.
24. Ms X complained to the Council in October about the delay and the Council responded the following month.
25. It acknowledged that it had not met the statutory timescales to assess Z due to the shortage of Educational Psychologists. It set out the action it was taking as part of its “SEND improvement plan” including using virtual assessments where appropriate and increasing its pool of Educational Psychologists.
26. Ms X was unhappy with the Council’s response and approached the Ombudsman.
27. Z has now been allocated an Educational Psychologist. However Z is still waiting to be assessed and no decision has yet been made on whether Z requires an EHC Plan.
28. The Ombudsman has found fault against this Council in multiple other cases involving delays in carrying out EHC needs assessments. In response the Council has provided us with details of the service improvement plan it has undertaken to improve recruitment and retention of Educational Psychologists.

My findings

29. We expect councils to follow statutory timescales as set out in paragraphs sixteen to eighteen of this decision statement. We are likely to find fault where there are significant breaches of those timescales.
30. Prior to a SEND Tribunal the Council told Ms X it agreed to carry out a needs assessment on 20 July. It should therefore have carried out the EHC needs assessment and issued its decision to issue an EHC Plan or not, within ten weeks of that date and by 28 September 2023.
31. If the Council decided through its EHC needs assessment that Z did require an EHC Plan, the Council should have issued Z’s final EHC Plan within a further four weeks and by 26 October 2023.
32. The Council has not met these timescales due to the shortage of Educational Psychologists and the increased demand for EHC Needs Assessments.
33. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in progressing Z’s EHC Needs Assessment is fault (service failure). This fault has caused frustration, distress and uncertainty to Z and Ms X.
34. I recognise the Council has made service improvements to respond to the increased demand for EHC needs assessments and to manage the shortage of Educational Psychologists. I am satisfied with these service improvements and so will not recommend anything further here. However I recommend the Council provide a remedy for the personal injustice caused to Z and Ms X.

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Agreed action

35. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X for the injustice caused by the fault (service failure) in this case;
2. Confirm that it will pay Ms X £100, for every month (four weeks) after the statutory deadline of 28 September 2023 that it takes the Council to decide whether Z requires an EHC Plan; and
3. Confirm that if the Council then decides Z requires an EHC Plan, it will pay Ms X £100 for every month (four weeks) of further delay in issuing the final Plan.
36. The financial remedies above should be paid when the EHC needs assessment process has concluded, either when a final EHC Plan has been issued, or a decision that Z does not require an EHC Plan has been issued.
37. We publish Guidance on Remedies which sets out, in section 3.2, our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
38. The Council has agreed to provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise and pay a financial remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman