Summary: Mrs B complained the Council failed to complete an Education, Health and Care needs assessment and issue a final Education, Health and Care Plan for her child, X, within the statutory timeframe. Mrs B says this has impacted X’s mental health and limited the support they receive at college. We have found the Council at fault. The Council will pay Mrs B a financial remedy, complete further assessments and update X’s Education, Health and Care Plan to include social care information.

The complaint

1. Mrs B complained the Council failed to complete an Education, Health and Care needs assessment and issue a final Education, Health and Care Plan for her child, X, within the statutory timeframe. Mrs B says this has impacted X’s mental health and limited the support they have received at college, impacting their academic prospects. Mrs B would like the Council to:
• Recognise the impact of the delay and ensure X has appropriate support moving forwards.
• Address the wider issue of EHC needs assessment delays.

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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 the opportunity to comment on a draft version of this decision. I considered any comments I received before making a final decision.

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What I found

Relevant Law and Guidance

Education, Health and Care (EHC) Plan

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.

Complaint Handling

12. The Council’s complaints policy sets out a two-stage complaints process.
13. At stage one the Council will:
• acknowledge the complaint within three working days.
• Aim to respond within 10 working days wherever possible.
• Provide a written response within 20 working days. If it cannot do this, it will extend the timescale and let the customer know.
14. At stage two the Council will:
• Write to the customer within five working days to tell them how it intends to proceed.
• Aim to provide a written response within 20 working days. If it cannot do this, it will let the customer know and give them a new timescale.

What Happened

EHC Needs Assessment

15. Mrs B submitted a parental request for an EHC needs assessment for X in the summer of 2023. The Council responded within six weeks, agreeing to assess X’s education, health, and care needs.
16. On the date the Council agreed to carry out an EHC needs assessment for X, it sought advice and information from an Educational Psychologist, social care, health, and education.
17. The Council should have completed the EHC needs assessment and issued a final plan by 20 November 2023 to comply with the statutory timeframe.
18. An educational psychology assessment did not take place until early 2024. The Council issued a draft plan 10 days later.
19. The Council issued X’s final EHC plan the following month, just over four months past the statutory deadline.
20. The final EHC Plan does not contain any advice from social care as that team failed to respond to the Council SEND Team’s request for advice. X is known to social care and has previously been subject to a Child in Need plan.

Complaint Handling and Correspondence

21. In the autumn of 2023 Mrs B sent a stage one complaint to the Council about its failure to complete the EHC needs assessment within the statutory timeframe.
22. In line with its complaints policy the Council issued a stage one complaint response within 16 working days. The Council upheld Mrs B’s complaint and advised the combination of a national shortage of Educational Psychologists and significant increase in EHC needs assessment requests had caused the delay. The Council committed to the following remedies as part of its stage one complaint response:
• A co-production meeting would be arranged.
• A draft plan would be completed within five working days of the Council receiving the educational psychology report.
• The Council would secure a Speech and Language assessment and Occupational Therapy assessment for X as part of the EHC needs assessment.
23. Two weeks after the Council issued its stage one complaint response Mrs B escalated her complaint to stage two. Mrs B’s stage two complaint focused on the Council’s failure to comply with the statutory timeframe for completing an EHC needs assessment and the Council’s failure to complete the remedy actions it had committed to in its stage one complaint response.
24. The Council took 30 working days to issue its stage two complaint response. In accordance with its complaints policy the Council kept Mrs B aware of the delay in issuing its response.
25. The Council’s stage two complaint response upheld Mrs B’s complaint and advised the same reasons for the delay as it explained in the stage one complaint response. The Council also upheld Mrs B’s other complaint and agreed the co-production meeting had not been arranged as agreed. The Council contacted Mrs B regarding the co-production meeting prior to issuing the stage two complaint response.
26. There is no evidence to suggest the Council completed the Speech and Language assessment or Occupational Therapy assessment as part of X’s EHC needs assessment as it committed to do in its stage one complaint response.

Educational Psychologists

27. 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.
28. The Council told us that to manage the demand it:
• Has put in place a specific recruitment strategy which includes recruiting and supporting assistant and trainee Educational Psychologists.
• Takes part in the regional trainee Educational Psychologists bursary scheme.
• Has recruited a roster of agency Educational Psychologists who it employs solely for the completion of EHC needs assessment psychological advice.
• Uses pre-existing Educational Psychology advice where there is a recent, comprehensive report from an appropriately qualified and registered educational psychologist.

My Findings

Assessment Delay

29. The Council failed to complete X’s EHC needs assessment and issue a final plan within the statutory timeframe. This is service failure which caused distress, uncertainty and frustration for X and Mrs B.
30. The Council has a suitable plan in place and is taking steps to address the impact of the national shortage of educational psychologists.
31. The Council’s Children’s Social Care team failed to provide the necessary advice as part of X’s EHC needs assessment. This has caused uncertainty and frustration for X and Mrs B.

Complaint Handling

32. The Council failed to complete the remedies it committed to in its stage one complaint response. This is fault which has caused uncertainty and frustration for X and Mrs B.

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Agreed action

33. Within one month of the final decision the Council will pay Mrs B £400 to acknowledge the distress, uncertainty and frustration caused by the delay in the EHC needs assessment process. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan in October 2023 until the date it issued the draft plan in March 2024.
34. Within 6 weeks of the final decision the Council will:
• complete the Speech and Language and Occupational Therapy assessments it committed to as part of its stage one complaint remedy and ensure X’s EHC Plan is updated following these assessments.
• Provide the necessary social care advice in accordance with its statutory duty and ensure X’s EHC Plan is updated to reflect this advice.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. We uphold this complaint. There was fault by the Council which caused an injustice. The Council has agreed to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman