Summary: Ms X complained about delays in issuing an Education, Health and Care Plan. This was due to a shortage of educational psychologists. This is fault. The Council has agreed to make a payment to Ms X to recognise the injustice.

The complaint

1. Ms X complains that the Council delayed in issuing an Education, Health and Care (EHC) Plan for her son, B. Ms X says this has caused her worry and to take time off work to visit schools. Ms X would like the Council to finalise the assessment.

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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. 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)
4. 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

5. I have considered information Ms X and the Council provided.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and policy

7. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
8. On receiving a request for an EHC needs assessment, a council must decide whether an assessment is necessary. As part of an EHC needs assessment, a council must seek advice from the parent, head teacher of the school, and from any other professionals, including an Educational Psychologist (EP).
9. 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:
• 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 a Council decides to assess a child’s EHC needs they must gather information from relevant professionals, who must respond within six weeks;
• If the Council decides not to issue an EHC Plan, it must explain this within 16 weeks from the date of the request.
• If it decides to issue an EHC Plan, the Council must then send a draft plan to the child’s parents, giving them 15 days to comment; and
• 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.

Background

10. The Council agreed to carry out an EHC Needs Assessment for B in September 2023 and began the process of requesting advice, including from an EP.
11. At the start of January 2024, the Council had missed the 16-week deadline to let Ms X know if it had decided not to issue an EHC Plan for B.
12. By the end of January 2024, the Council still had not let Ms X know if it had decided to issue an EHC Plan for B and had missed the 20-week deadline to do so.
13. In April 2024, an EP saw B and provided the Council with a report. The Council wrote to Ms X in May 2024 to let her know it had decided to issue an EHC Plan for B.
14. Later that month the Council issued a draft EHC Plan to Ms X for her comments.
15. A final EHC Plan was then issued in June 2024, approximately six months later than the deadline to do so.
16. In response to our enquiries on this complaint, the Council explained the delays in completing an EHC Needs Assessment for B was a result of an increase in demand for EP assessments and a national shortage of EPs creating a delay. The Council explained that to address this going forward, it has undertaken a recruitment programme to attract more EPs. The Council has also offered to pay Ms X £600 to recognise the impact of the six-month delay and £300 as a symbolic gesture for the time and trouble she was put to.

Analysis

17. The Council began the process of assessing B's EHC needs in September 2023. If the Council completed this in line with statutory time limits, B's EHC Plan would have been finalised by the end of January 2024. However, the Council did not finalise B's EHC Plan until June 2024. This is fault.
18. The delays would have caused uncertainty and distress to B and Ms X and delayed Ms X's right to appeal to the tribunal if she disagreed with the content of the EHC Plan. The delay also created uncertainty around whether B was missing out on special educational provision he would have been entitled to between January 2024 and June 2024. This is injustice.
19. To remedy the injustice, the Council has offered to apologise to Ms X, pay her £100 for each month of the delay, and pay her £300 for the time and trouble she was put to through the process. I find this is a suitable remedy to recognise the identified injustice.

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Agreed action

20. The Council has agreed to complete the following action within one month:
• Apologise to Ms X for the injustice identified above.
• Pay Ms X £300 as a symbolic payment for her time and trouble.
• Pay Ms X £100 a month, for six months, as a recognition of injustice caused by the delay for the period of January 2023 to June 2024.

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Final decision

21. I find the Council at fault for delays in the EHC Needs Assessment process.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman