Summary: Mrs X complained about the Council’s handling of her child’s Education, Health and Care needs assessment. We found fault by the Council in its poor communication with Mrs X and its delay in assessing her child and issuing an Education Health and Care Plan. In recognition of the distress and frustration caused by its faults, the Council agreed to apologise and make a symbolic payment of £500 to Mrs X.

The complaint

1. Mrs X complained about the Council’s response to her request for an education health and care (EHC) needs assessment for her child (‘C’) because it:

• delayed completing the assessment and failed to issue an EHC Plan within the statutory timescale; and
• failed to respond to her telephone, email, and portal contacts.

2. Mrs X said without a final EHC Plan she could not apply for a specialist school place, which was unfair and disadvantaged C’s education. The delay, poor communication, and uncertainty of not knowing whether C would secure a specialist school place also caused worry and stress affecting the family’s mental health and wellbeing.
3. Mrs X wanted the Council to issue a final EHC Plan for C.

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The Ombudsman’s role and powers

4. 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 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. 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 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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How I considered this complaint

8. I have:

• considered Mrs X’s complaint and supporting papers;
• asked for and considered the Council’s comments and supporting papers on the complaint;
• shared the Council’s comments and supporting papers with Mrs X; and
• shared a draft of this statement with Mrs X and the Council and considered any comments received before making a final decision.

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What I found

Background

9. A child or young person with special educational needs (‘SEN’) may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
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 Special Educational Needs and Disability (‘SEND’) 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. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• 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.
• 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);  

11. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice. 

What happened

12. Mrs X asked the Council to carry out an EHC needs assessment for C. Within the following six weeks, the Council told Mrs X it would assess C’s needs. The Council did not tell Mrs X whether it would issue an EHC Plan after 16 weeks. And the Council had not issued either a draft or final Plan within 20 weeks of Mrs X asking for an assessment. (See paragraph 10.)
13. Mrs X complained to the Council saying it had been 25 weeks since she asked it to assess C’s needs. Mrs X said the Council had provided no information and ignored her emails and messages and not returned her telephone calls. Mrs X also said the Council had not told of its decision to issue an EHC Plan or issued a plan. And the delay in issuing a Plan was preventing her from applying for a specialist school place for C.
14. In response, the Council accepted it had not met the legal timescales for deciding whether to issue an EHC Plan or issuing any final Plan. The Council said it had not received the EP’s report for C. Its EP service was facing significant challenges given the number of assessments needed and it was working hard to reduce delays. The Council said there was a national shortage of EPs and many councils faced similar issues in assigning cases and completing reports. The Council said it had recently assigned an EP to C’s case. And it confirmed it would issue an EHC Plan for C. The Council also apologised for not responding quickly to Mrs X’s emails and telephone calls.
15. The Council issued a draft EHC Plan for C about 31 weeks after Mrs X asked for an assessment. And, about 12 weeks later, the Council issued C’s final EHC Plan. The process therefore took about 43 weeks rather than 20 weeks (see fourth bullet point to paragraph 10). C’s EHC Plan named a specialist school for C to attend.

The Council’s comments to the Ombudsman

16. The Council said the national shortage of EPs delayed its EHC assessments. In turn, this affected its ability to meet legal timescales for deciding whether to issue an EHC Plan and to issue any Plan. The number of EHC Plans it issued and maintained had significantly increased. And the number of children it was assessing had tripled over the last two years. It could not issue an EHC Plan without an EP’s report. And the delay in assigning an EP to C’s case was not avoidable due to the number of people asking for assessments. The delay in C’s case was wholly due to the shortage of EPs and the demands on EPs time.
17. To address the shortage of EPs the Council said it had increased its EP posts, which it hoped would reduce delays. It was also investing to recruit and increase the number of EPs. And it was working with a private agency, so their EPs were available alongside its own EPs to increase capacity for processing assessments. Trainees and assistants were also supporting EPs with their statutory work. It was continually reviewing its strategy for EHC assessments to improve efficiency in handling cases. It was also looking to change and improve its procedures and prioritise cases according to individual circumstances and need.
18. The Council again accepted its communication with Mrs X had been poor and offered a further apology. It said, after Mrs X complained, a senior officer had overseen C’s case and handled communication with Mrs X. The Council said it had introduced a procedure to alert a senior officer to cases where residents raised concerns about poor communication on their case.

Consideration

19. There is no dispute the Council failed to meet the legal timescale for issuing C’s final EHC Plan. The evidence showed the Council issued the final Plan five months after the legal 20 weeks’ deadline. This five-month delay was fault.

20. The Council said the delay was due to a lack of EPs and the increased caseloads handled by available EPs. The evidence showed the Council assigned an EP to C’s case about 24 weeks after Mrs X asked for an EHC needs assessment for C. The EP completed their report within six weeks and the Council then issued a draft EHC Plan within the following two weeks.

21. We are aware there is a national shortage of EPs. If we are satisfied a council has put measures in place to mitigate the impact of that shortage on its services, we consider delay attributable to the lack of EP advice as service failure (see paragraphs 4 and 5). Here, I was satisfied the Council was acting to address the impact of EP shortages on its services (see paragraph 17). I therefore found the delay in securing an EP report for C’s assessment was a service failure.

22. However, after issuing a draft EHC Plan, it took the Council a further 12 weeks to issue C’s final Plan. During those 12 weeks, the case officer for C’s case changed and the Council overlooked previously agreed amendments to the draft Plan. This caused further avoidable delay, which was fault, between the Council issuing draft and final EHC Plans.

23. C now has an EHC Plan and a specialist school placement for September 2024. However, the evidence showed the Council’s delays caused Mrs X frustration, uncertainty and distress. This Council’s admitted poor communication, which I agreed fell below acceptable administrative standards and was fault, added to Mrs X’s distress. I therefore found the Council’s faults caused Mrs X significant injustice.

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Agreed action

24. I found fault causing injustice. The Council had issued C’s EHC Plan and apologised to Mrs X for its poor communication. However, it had not apologised or offered any other remedy for the injustice to Mrs X caused by its delays in issuing C’s EHC Plan. To address that injustice, the Council agreed, within 20 working days of this decision statement, to:

• send Mrs X a written apology; and
• make a symbolic payment of £500 to Mrs X,

in recognition of the frustration, uncertainty and distress caused by its faults in handling C’s EHC assessment and issuing the final EHC Plan.

25. We publish guidance on remedies which includes our views on effective apologies. The Council should consider this guidance in making the apology recommended at paragraph 24. The Council should also provide us with evidence it has complied with the recommendations at paragraph 24.
26. The Council had explained how it was mitigating the impact of the national shortage of EPs on its services (see paragraph 17). It had also acted to address residents’ concerns about poor communication (see paragraph 18). So, I did not make any service improvement recommendations at this point.

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Final decision

27. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendations at paragraph 24.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman