Summary: Mrs C complained the Council failed to adhere to the statutory timeframes for completing an EHC needs assessment for her son, X. She says X is struggling at school and needs the process completed to ensure they receive appropriate educational support ahead of their GCSE’s. We have found the Council at fault. The Council has agreed to make a payment to remedy the injustice caused by the faults identified.

The complaint

1. Mrs C complained the Council failed to adhere to statutory timeframes for completing an EHC needs assessment for her son, X. She says X is struggling at school and needs the process completed to ensure they receive appropriate educational support ahead of their GCSE’s. Mrs C would like the Council to issue an EHC Plan as soon as possible, without further delay.

Back to top

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.

Back to top

How I considered this complaint

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

Back to top

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.

Back to top

What Happened

12. X’s school submitted a request for an EHC needs assessment for X in January 2023. The Council responded seven weeks later, explaining its decision to refuse to carry out the EHC needs assessment.
13. Mrs C and the Council attended a mediation meeting in June 2023. During this meeting the Council overturned its initial decision and agreed to complete an assessment of X’s Education, Health and Care needs.
14. Due to a technical error the Council did not begin the EHC needs assessment process for another two months.
15. The EHC needs assessment process should have been completed, with a draft EHC Plan issued in July 2023 and a final EHC plan issued by early September 2023. X’s EHC needs assessment did not begin until August 2023 and an Educational Psychology assessment did not take place until April 2024.
16. Following the Educational Psychology assessment the Council issued a draft EHC Plan in April 2024. Mr and Mrs C responded to the draft plan within the 15 day timeframe. The Council has not yet issued a final EHC Plan.

Educational Psychologists

17. In response to our investigation the Council told us it is affected by the national shortage of Educational Psychologists. This is an issue for many Councils as the number of Educational Psychologists has declined and the number of EHC needs assessment requests has increased dramatically.
18. The Council told us to manage the demand it:
• Has increased the number of substantive Educational Psychology posts.
• Is using locum Educational Psychologists.
• Is undertaking virtual assessments where appropriate.
• Is regularly reviewing the number of EHC needs assessment requests and increasing capacity across the service to support statutory EHC needs assessments.

Back to top

My Findings

19. The Council failed to meet the six week timeframe for issuing its decision to assess X’s education, health and care needs. This is fault which caused uncertainty.
20. The Council agreed to complete and assessment of X’s Education, Health and Care needs during a mediation meeting in June 2023, however it failed to begin X’s needs assessment. Mrs C had to chase the Council and the assessment process did not begin until two months after the Council agreed to assess X’s needs. This is fault which caused frustration, uncertainty and distress for X and Mrs C.
21. The Council failed to complete X’s needs assessment and issue a final plan within the statutory timeframe. This is service failure which caused frustration, uncertainty and distress for X and Mrs C. It also delays Mrs C’s right to appeal.
22. The Council has a suitable plan in place and is taking steps to address the impact of the national shortage of educational psychologists therefore I have not made any service improvement recommendations.

Back to top

Recommended action

23. Within one month of the final decision the Council will:
• Pay Mrs C £100 for every month of delay after the statutory deadline of 06 September 2023 until the date the final EHC plan is sent to Mrs C.
24. The Council should provide us with evidence it has complied with the above actions.

Back to top

Draft decision

25. 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

Back to top

Investigator's decision on behalf of the Ombudsman