Summary: The Council failed to complete an Education, Health and Care (EHC) needs assessment within statutory timescales. This delay was, in part, due to a shortage of Educational Psychologists. The Council will make a symbolic payment to Mrs Y and D. The Council will also outline the service improvements it is taking to address the shortage of staff and backlog of cases.

The complaint

1. Mrs Y complains about delay in the EHC plan process for their child, who I will call D. Mrs Y says the Council failed to issue an EHC plan in 20 weeks as required by the SEN Code of Practice.
2. Mrs Y says the delay affected her mental health and impacted D’s education.

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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. 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)
4. 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)
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 the information provided by Mrs Y and the Council.
7. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
8. Mrs Y and the Council now have an opportunity to comment on my draft decision. I will consider any comments received before making a final decision.
9. 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 found

What should happen

10. The Act and Regulations set out the way councils should assess the special educational needs and disabilities of children and young people. The Code provides guidance to councils about how to do this.
11. Councils must decide whether to carry out an EHC needs assessment within six weeks of receiving a parent request. Regulation 6 sets out what professional advice a Council must seek. Educational Psychology (EP) advice is a mandatory part of the assessment process.
12. Professionals should provide their advice within six weeks of a request from the Council. Once the Council has received all relevant advice it must decide whether an EHC plan is required. If so, it must issue a final plan within twenty weeks of receiving the request to assess.
13. At the stage when a council refuses to issue an EHC plan, or when it issues a final EHC plan, parents and the young person have a right to appeal to the SEND Tribunal, if they disagree with the council’s decision.

What happened

14. The Council received a request to complete an EHC needs assessment for Mrs Y’s primary-school aged son, whom I will call D, on 2 March 2023. The Council refused the request on 12 April. Mrs Y raised her objections and requested mediation. The Council reconsidered its position and decided on 16 May to assess D.
15. Mrs Y regularly contacted the Council to obtain updates on D’s case. Sometimes Mrs Y says she did not receive any response. Other times the Council did respond with anticipated timescales, but these were not met. Some of the poor communication was due to several changes in the service area and to D’s allocated caseworker.
16. In the meantime, Mrs Y said D’s anxiety increased and he sometimes refused to go to school because he felt unable to cope. D is currently in school Year 3 but works at Year 1 and 2 levels. During the assessment period, D did not have the support he needed, and Mrs Y says this contributed to his anxiety about attending school.
17. In line with the regulations and the Code, the deadline for the completion of D’s assessment was 20 July 2023. The Council did not meet this deadline and Mrs Y complained on 6 September.
18. The Council responded to the complaint on 12 September. In summary, the Council upheld the complaint and said it:
• apologises for the standard of communication received by Mrs Y. This was in part due to a recent restructure of the department and the Council is working hard to improve the way it communicates with parents.
• apologises for the time taken to allocate an EP to D’s case. There is unprecedented demand for assessments and the Council is looking to recruit additional members of permanent staff and to engage the use of locum EP’s due to the national shortages.
• is hopeful the Council will allocate an EP within six weeks and by 24 October, with EP advice provided by 5 December.
19. Mrs Y complained again on 20 September. She expressed her continued frustrations with the delayed process and explained that D’s new school year had already started, but without the provision which he needed. Mrs Y sent a further email on 2 October to outline the Council’s failure to adhere to the statutory timescales.
20. The Council responded to the complaint on 4 October. In summary it said:
• the Council apologises for failing to meet the statutory timescales.
• the Council refused the initial request for an EHC needs assessment because D’s school did not provide enough supporting evidence. This Council reconsidered and decided on 16 May to assess D.
• the Council accepts it has not always communicated at an appropriate level and apologises for this. It will try to ensure that Mrs Y receives more regular updates.
• the Council does not have a definite date for the EP allocation but is still hopeful to achieve this by 24 October. The Council will then look to decide whether to issue an EHC plan within four weeks of receiving the EP’s advice.
• the Council will not investigate Mrs Y’s complaint further and she has the right to approach the Ombudsman.
21. When the EP allocation did not take place on 24 October as anticipated, Mrs Y contacted the Council again to express her concerns about the ongoing delay.
22. The Council allocated an EP to assess D on 26 October. It also responded to Mrs Y’s concerns the following day. The Council expressed its apologies for the failure to allocate the EP by 24 October, which was the anticipated deadline previously suggested. The Council said it hoped to receive the EP’s advice within six weeks.
23. The EP submitted their advice on 21 November 2023.
24. The Council issued D’s final EHC plan on 16 January 2024. This was 46 weeks after the assessment request. The plan named the mainstream primary school already attended by D, but included additional provision such as:
• lessons and tasks to be differentiated so that D can access them.
• intervention to be personalised to D’s needs, such as small group work.
• access to a quiet and distraction free environment at times.
• checklists, visual cards and timetables to be used to support D.
25. Although there were some typographical errors and other mistakes in the EHC plan, Mrs Y did not disagree with the contents in relation to D’s provision. She complained to the Ombudsman because she felt the additional provision which D now receives should have been implemented much sooner.

Was there fault causing injustice in the Council’s actions?

26. We find there was service failure due to the Council’s inability to commission an EP between March and October 2023. The Ombudsman is aware of the problems arising from a national shortage of EPs, which in turn created delay in the completion of D’s EHC needs assessment.
27. Mrs Y experienced avoidable distress arising from the delay and the Council’s poor communication with her. The Council has already upheld this part of the complaint because it accepts that its communication with Mrs Y was poor. Despite agreeing to provide regular updates when it responded to the complaint in October, Mrs Y says the Council only maintained this for a couple of weeks. In our view, the Council should provide a symbolic payment of £200 in recognition of Mrs Y’s avoidable time, trouble and distress. The Council has agreed to do so.
28. In our view, the Council should also remedy the injustice caused to D because of the delay in his assessment. The Ombudsman can make a decision on the balance of probabilities about the potential missed provision as a result of delay. D’s EHC plan says that he, “… has a history of difficulties and slow progress with learning, despite a high level of support over time. In school he is reported to be working at reception/year one level. [D] has learning difficulties which span a range of cognitive areas”.
29. In response to the draft decision, the Council confirmed its acceptance of the Ombudsman’s findings and provided further information about some of the steps it is taking to address the impact of delays caused by EP shortages. The Council said the level of top-up funding that is allocated to schools to fund provision outlined in EHC plans is backdated to the date at which the EHC assessment should have been completed.
30. The Council explained backdated funding may be used flexibly by the school, either to reimburse it for any provision made available to the child or young person whilst the EHC needs assessment was completed, or to provide additional support after the EHC plan is issued. In D’s case, the school received £5,580 in back payment from the Council after it issued D’s final EHCP on 16 January.
31. Based on the information we have reviewed, and on the balance of probabilities, we think it is more likely than not that D would have received the additional provision sooner, had it not been for the delay. This is because D’s needs are long-standing, and it therefore follows that an earlier EP assessment would likely have arrived at the same or similar outcome. The delay amounts to just over one school term. If the Council had finalised D’s EHC plan in July 2023, he would have received the additional provision from September 2023. Instead, the provision started one week into the Spring term 2024.
32. Although we welcome the measures taken by the Council to help bridge any gaps of provision during a period of delay, we consider a personal remedy for D remains appropriate. This is because the school may use the backdated funding flexibly. Therefore, we cannot be sure how the school has used that funding and whether D has or will benefit from any additional provision. The Council has agreed to provide a symbolic financial remedy in line with the Ombudsman’s Remedies Guidance.

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Agreed action

33. Within four weeks of our final decision, the Council will provide evidence to show it has:
• Paid £200 to Mrs Y in recognition of her distress, time and trouble; and
• Paid £330 to Mrs Y for D’s educational benefit. This is in recognition of the additional support and provision he likely missed because of the delay.
34. In the response to Mrs Y’s complaint, the Council explained it is taking steps to restructure the service area, increase staffing and use additional practitioners such as locum EPs. With this in mind, within 12 weeks of our final decision, the Council has agreed to:
• Provide evidence of any planned service improvements, or those already undertaken, to improve the timescales for EHC needs assessments and EP allocation.

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Final decision

35. I have completed my investigation with a finding of service failure causing injustice for the reasons explained in this statement. The agreed actions listed above are an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman