Summary: We will not investigate Ms X’s complaint about delay in the Council completing her child’s Education, Health and Care needs assessment. This is because the Council has agreed to resolve the complaint early by a proportionate remedy for the injustice caused.

The complaint

1. Ms X ccomplains about delay in the Council completing her child’s Education, Health, and Care (EHC) needs assessment.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. 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 needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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; 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.
6. Following an assessment, if a council decides not to issue an EHC Plan, it must notify the parents/carers within 16 weeks of the date it agreed to complete an assessment.
7. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist. It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
8. If we were to investigate, it is likely we would likely find fault causing an injustice. This is because the Council has not completed the EHC needs assessment within the statutory timescales. It is acknowledged there is a national shortage of educational psychologists. However, the Council must still follow the statutory timescales set out in the law and the Code. I am satisfied the delay will be causing Ms X distress and frustration.
9. We therefore invited the Council to remedy this by making a payment of £100 for each month of delay until it issues an appealable decision:
• If the decision is to refuse an EHC plan - £100 a month from 16 weeks until the date the refusal letter is issued
• If the decision is to issue an EHC plan - £100 a month from 20 weeks until the final plan is issued.
10. On similar recent Ombudsman cases, the Council provided us with details of the action it is taking to address the shortage of EPs. This included:
• constantly looking to hire new EPs and has successfully hired some;
• introducing overtime;
• re-designing its department;
• using independent EPs to act as “Associate EPs”, who produce advice to the standard required by the Council; and
• offering virtual assessments to reduce how long each assessment takes.
11. The Council’s plan of action demonstrates its efforts to mitigate the impact of the nation-wide issue on its service users. We will continue to monitor the effectiveness of this through our casework.

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Agreed action

12. To its credit, the Council agreed to resolve the complaint and will complete the above within four weeks of when it either issues a decision to refuse or the final EHC plan.
13. The Council will provide us with an update on the progress of the EHC needs assessment in four weeks.

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Final decision

14. We have upheld this complaint because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman