Summary: Mrs B complained the Council delayed in completing an Education, Health and Care assessment and failed to meet the statutory timeframe for issuing an Education, Health and Care Plan for her child, X. Mrs B says this caused distress for X and the family. We have found the Council at fault. The Council has agreed to provide staff training and make a payment to remedy the injustice caused by the faults identified.

The complaint

1. Mrs B complained the Council delayed in completing an Education, Health and Care needs assessment for her child, X, and it failed to meet the statutory timeframe for issuing an Education, Health and Care Plan. Mrs B says this has caused extreme emotional distress for X and the rest of the family. Mrs B would like the Council to:
• Improve its statutory process and its communication with parents.
• Improve support for children during the Education, Health and Care Plan assessment process.
• Provide a financial remedy.

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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. 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. 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 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.

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How I considered this complaint

6. I discussed the complaint with Mrs B and considered the evidence she provided.
7. I made enquiries of the Council and considered its response.
8. Mrs B and the Council had an opportunity to comment on the draft decision. I considered any comments I received before making a final decision.

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What I found

Relevant Law and Guidance

9. 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. The EHC Plan is set out in sections. Section F sets out the child’s special educational provision and section I ‘names’ the school or type of school the child will attend.
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:
• 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. This includes advice and information from an Educational Psychologist, social care and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC Plan after an assessment, it should prepare a draft EHC Plan. The council should send the draft Plan to the child’s parent or the young person and give them at least 15 days to comment. It should also send the Plan to schools that may be able to accept the child or young person and meet their needs. This should take around six weeks; 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.
11. There is a right of appeal to the SEND (Special Educational Needs and Disabilities) 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.
12. Part two, section 5 of the Special Educational Needs and Disability Regulations 2014 states, when making a decision to assess a child’s Education, Health and Care needs, a local authority must inform the child’s parent of the decision as soon as practicable and in any event within 6 weeks. Section 5(4) details the exceptions to this time limit and includes where the Council has requested advice from a headteacher during a period where the school is closed for more than four weeks.
13. Part two, section 10(4) of the Special Educational Needs and Disability Regulations 2014 states that Council’s do not need to comply with the time limit for issuing a final EHC Plan if it is impractical to do so because it has requested advice from a head teacher during a period where the school is closed for a continuous period of more than 4 weeks.

What Happened

EHC Needs Assessment

14. Mrs B sent a parental request for an assessment of X’s Education, Health and Care needs in February 2023. The Council responded to this request within six weeks and advised it would not carry out an EHC needs assessment for X.
15. In July 2023, Mrs B provided an additional report to the Council. In response to this report the Council overturned its decision and agreed to carry out an assessment of X’s Education, Health and Care needs.
16. In its letter to Mrs B the Council advised it did not need to adhere to the statutory timeframe for completing the EHC needs assessment due to the school summer holidays. It incorrectly cited SEND Regulation 5(4) as its reason for not complying with the statutory timeframe, however this did not cause Mrs B injustice as the Council could apply the timeframe exemption under SEND Regulation 10(4). The timeframe exemption meant the statutory deadline for issuing a final EHC Plan was 17 November 2023.
17. An Educational Psychologist assessed X’s Education, Health and Care needs in early December 2023. The Council issued X’s draft EHC Plan 13 weeks later.
18. The Council has not yet issued a final EHC Plan for X.

Educational Psychologists

19. In response to our investigation the Council told us it is affected by the national shortage of Educational Psychologists (Eps). This is an issue for many Councils as the number of EP’s has declined and the number of EHC needs assessment requests has increased dramatically.
20. The Council has told us that to manage the demand it:
• Has developed a SEND recovery plan to look at any other barriers to timeliness.
• Is looking at ways to work together to support families and education settings to enable a needs led approach whilst children and young people are awaiting an EHC needs assessment.
• Has signed a contract with a specialist provider who will focus on the outstanding EHC needs assessments.
• Is putting steps in place to maximise recruitment of new EP’s.

My Findings

21. The Council failed to complete X’s EHC needs assessment and issue a final plan within the statutory timeframe. This is service failure which has caused distress, uncertainty and frustration for X and Mrs B.
22. The Council has a suitable plan in place and is taking steps to address the impact of the national shortage of educational psychologists.

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Agreed action

23. Within one month of the final decision the Council should pay Mrs B £100 for every month of delay after the statutory deadline of 17 November 2023 until the date the final plan is sent to Mrs B.
24. Within three months of the final decision the Council should provide training to its SEN staff to ensure they understand the legal framework, the Council’s obligations to complete the EHC needs assessment within the statutory timeframe, and when timeframe exemptions apply.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

We uphold this complaint. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman