Summary: Ms X complained the Council delayed assessing her child Z for an Education, Health and Care (EHC) Plan. The Council was at fault which caused Ms X and Z frustration and distress and meant Z missed out on half a term of special education provision. The Council should apologise and pay Ms X a total of £1100.

The complaint

1. Ms X complained the Council delayed assessing her child Z for an Education, Health and Care (EHC) Plan. This caused her and Z distress and frustration and meant Z missed out on support they should have received.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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. 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.
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 the final decision on this complaint with Ofsted.

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How I considered this complaint

8. I have considered:
• the information provided by Ms X and discussed the complaint with her.
• information provided by the Council in response to my enquiries.
• the relevant law and guidance and the Ombudsman's Guidance on Remedies.
9. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received before making a final decision.

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What I found

10. Children with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
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 a council receives a request for an EHC assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice; and
• if the council decides to issue an EHC Plan after an assessment, it should prepare a draft EHC Plan and send it to schools that may be able to accept the child or young person and meet their needs. Schools should respond to the consultations within fifteen calendar days; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC Plan.
12. There is a right of appeal to the SEND Tribunal about the educational provision and placement named in a child’s EHC Plan. This appeal right is only engaged once the final EHC Plan has been issued.

What happened

13. The Council received a request for an EHC needs assessment for Z on 23 January 2023. It decided on 2 March 2023 to undertake a needs assessment and sought advice from relevant professionals.
14. Ms X complained to the Council in mid-August 2023 about the delays in progressing Z’s EHC needs assessment.
15. The Council received the EP advice on 14 September 2023. However, Ms X had concerns the EP’s advice was based on out of date information and raised this with the Council.
16. The Council responded to Ms X's complaint on 19 September. It apologised for the delays in progressing Z’s assessment and explained there was a national shortage of EPs and a high demand for services. It also said the EP service had agreed that the information in the report was out of date and so it had agreed to undertake further work. It said it hoped to receive this updated advice by 29 September. It said it was prioritising EHC needs assessment requests and had recruited additional administrative staff and SEND officers to help address capacity issues.
17. On 5 October Ms X asked to escalate her complaint as the further deadline for updated EP advice had been missed. The Council received updated EP advice on 7 October 2023.
18. The Council responded to Ms X’s complaint in late October. It apologised for the further delays and advised it had not received the updated EP advice until 7 October. It said it had restructured its service to be more efficient and had commissioned additional EP support in the short term with a long term plan to increase their numbers. It said it had invested an additional £1 million to increase the capacity of its EP service and SEND assessment service.
19. The Council agreed to issue an EHC Plan and issued a draft EHC Plan on 12 December 2023. It consulted Z’s school and issued the final EHC Plan on 15 January 2024.

Council’s action to address the delays

20. In response to a recent investigation, the Council told us it is being affected by the nationwide shortage of EPs. This is an issue for many councils as the number of EPs has declined and the number of EHC assessment requests has increased dramatically. To manage that demand and delays in the process the Council told us it has:
• created a separate waiting list for the 250 assessment requests it received between January and the end of March 2023. It prioritised those requests according to need and within each category, allocated them to an EP by wait time. Children in care and those without a school place were placed in the highest priority category. The Council allocated the last of the January to March 2023 requests to an EP in September 2023;
• prioritised the requests received since April 2023 according to wait time;
• recruited locum Educational Psychologists and engaged with agencies who could offer access to locum Educational Psychologists via their services. 
• remodelled its SEND department in February 2023 in advance of a more comprehensive redesign which it is currently planning. It now has a team dedicated to carrying out EHC assessments and writing children and young people’s first EHC Plans.
• Recruited additional EHC Plan writers.
• Moved additional business support assistants to the assessment team when it identified issues with business support capacity.

Findings

21. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. It took the Council 51 weeks to carry out an EHC needs assessment and issue Z’s EHC Plan, instead of the 20 weeks required by the Regulations and Code. This was a delay of 31 weeks. This delay was fault.
22. EHC needs assessments must include advice from an Educational Psychologist. The Council should have ensured it received EP advice within six weeks. It took 28 weeks to receive this advice. When it received the advice, it was based on out of date information. This took another three weeks to resolve.
23. The Council has not met these timescales due to the shortage of Educational Psychologists and the increased demand for EHC needs assessments. 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). The fault caused Ms X and Z frustration, distress and uncertainty. It also delayed Ms X’s right of appeal.
24. The Council has explained the efforts it is making to resolve the delays in the EHC needs assessment process. Because the Council has already taken suitable steps to address the delays and improve the SEND department’s service, I have not made a further recommendation.
25. I cannot say whether the delay that occurred before the EP gave their advice in October 2023 meant Z lost out on special educational provision. This is because the EP advice reflected Z’s needs at the time of the assessment, not necessarily as they would have been when it was originally due. I therefore cannot say what the EP advice would have been or what the Council would have taken from that advice for inclusion in Z’s EHC Plan. Instead, the delays in receiving the EP advice caused Ms X and Z distress and frustration.
26. Once the Council received the updated EP advice in October, it should have issued Z’s final EHC Plan within around six weeks. It took the Council fourteen weeks to issue final EHC Plan. This was eight weeks too long and was fault.
27. I am satisfied on balance, that the EHC Plan the Council issued in January 2024 is not materially different from what it would have been if the Council had issued the Plan in mid-November 2023, as it should have. Therefore, allowing for school holidays, Z missed out on around half a term of special educational provision. The Ombudsman typically recommends between £900 to £2400 per term in recognition of lost provision. Taking into account that Z was attending school during this period, and the provision in their EHC Plan, I have recommended £500 for half a term of missed provision, in line with the Ombudsman’s Guidance on Remedies.
28. If Ms X disagrees with the content of the final EHC Plan, it is open to her to appeal this to the Tribunal.

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Agreed action

29. Within one month of the final decision, the Council has agreed to:
1. Apologise to Ms X for the distress and frustration she experienced due to the delay in completing Z’s EHC needs assessment and issuing Z’s EHC Plan. We publish Guidance on Remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
• Pay Ms X £600 to acknowledge the distress and frustration caused by the delay in assessing Z. This equates to around £100 per month (four weeks) for the time between when it should have received the EP advice to when it received the updated EP advice.
• Pay Ms X £500 to recognise the impact of the loss of half a term’s special educational provision on Z.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have completed my investigation. There was fault leading to injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman