Summary: We found fault on Ms B’s complaint about the Council failing to consider and decide her request for an Education, Health and Care needs assessment for her daughter C within statutory timescales. The 20-week timescale was missed by seven months. The agreed action remedies the injustice caused.

The complaint

1. Ms B complains about the Council failing to consider and decide the request she made for an Education, Health, and Care needs assessment of her daughter within statutory timescales: as a result, her daughter is not receiving the support she needs to access learning which is causing them all a great deal of anxiety and stress.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Education, Health and Care Plan

6. A child or young person with special educational needs (SEN) may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 

Timescales for EHC assessment 

7. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out Education, Health and Care (EHC) need assessments and producing EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN 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; 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal;
• The process of assessing needs and developing EHCPs “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 EHCP or refuse to issue one within 16 weeks;
• If the council goes on to issue an EHCP, the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHCP and express a preference for an educational placement; and
• The council must consult with the parent or young person’s preferred educational placement who must respond within 15 calendar days.

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How I considered this complaint

8. I considered all the information Ms B sent, including the notes I made of our telephone conversation. I also took account of the Council’s response to my enquiries. I sent a copy of my draft decision to Ms B and the Council. I considered their responses.

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What I found

9. Ms B’s daughter, C, suffered severe anxiety at school. As a result, she started avoiding attending as she could not cope with the classroom. C’s attendance began to drop, and her mental health deteriorated. Ms B decided the school could no longer meet C’s needs.
10. In May 2023, she applied for an EHC needs assessment. This was a request for the Council to carry out an assessment of C’s education, health, and care needs.
11. The Council stated her request was seen at the Decision and Moderation Group in August. It said the Group decided to carry out the EHC needs assessment. I have seen no evidence of the Group reaching this decision.
12. Hearing nothing further, apart from an initial acknowledgement, Ms B chased the Council in September. The Council sent a request for advice and information at the start of the month with a deadline set for 16 October. It sent the request to teams in Education (including the educational psychology team), Health, and Social Care. It explained it would then go the Decision and Moderation Group which would decide whether it would issue an EHCP or not. The Council apologised for the delay as it had exceeded the statutory 20-week deadline. It explained this was due to high demand plus staffing levels.
13. Towards the end of the month, she received a letter saying the Council decided it would carry out the EHC needs assessment. The Council also told her the contributions were due on 16 October.
14. She was sent the EHC needs assessment Request Outcome letter and the timescales for this process. I have not seen a copy of this letter. It explained when all the information requested was received, it would pass the request to the Decision and Moderation Group for an outcome as to whether it would issue an EHCP.
15. In October, Ms B told the Council C now received education through the hospital service which also needed approaching to contribute to the assessment. The Council acknowledged this and also told her it was now just waiting for advice and information from the education psychologist.
16. The Council accepted delaying telling Ms B an EHC needs assessment would take place. This meant it delayed making the request for ‘advice and information’. Due to staff sickness, there was a reduction of its Decision and Moderation Groups which impacted on timescales. It has since provided extra support from internal teams to ensure this does not happen again. It also explained there was delay because of the capacity of educational psychologists. While it employed more of them, the capacity has not kept up with the growing need. This is a recognised national problem.
17. Again, hearing nothing further, she wrote to the Council in early November. The Council responded saying it would send it to the educational psychology team who would give a rough timescale for when it would allocate an educational psychologist to complete an assessment. She heard nothing from the team and made a formal complaint the same month.
18. The following month the Council upheld her complaint under the first stage of its complaints procedure. This was because the EHC needs assessment was not completed within the statutory 20-week timeframe.
19. Although Ms B finally heard from the educational psychology team in December, when an educational psychologist was allocated, she asked for her complaint to go to stage 2.
20. In January 2024, the Council responded under stage 2 of its complaints procedure. This upheld her complaint and offered to compare any provision set out in the EHCP with that she has in place. It would consider a suitable remedy if there were gaps between the two. This was to make sure C was not disadvantaged by the delays.
21. The Council explained there was a national issue which affected general delays on her case. It was trying to recruit staff and improve processes. The aim was to speed up the process and ensure it issued EHCPs within statutory timescales. It confirmed it used a couple of independent educational psychologists where possible, but this only had limited capacity. At the time of this application, this was not an option due to limitations of the provider. The Council apologised for the distress, inconvenience, frustration, or uncertainty caused.
22. In February, the Council agreed C needed an EHCP and told Ms B about it. It explained the next step was to prepare a draft EHCP which would be issued ‘in due course’.
23. In April, the Council sent her the draft EHCP.
24. The final EHCP was issued on 14 May which named the school preferred by Ms B.
25. The Council explained it was continually monitoring the position with educational psychologist capacity in terms of demand for SEN services. In addition, it was also carrying out ongoing recruitment to strengthen educational psychology capacity. Since the request, it had two rounds of recruitment and employed two main grade educational psychologists who will start in September 2024. Earlier this year, the Council employed two new assistant educational psychologists with three more to join over the summer. This will help with the quality of assessments and improve timeliness. It was also looking at the way it works, and how it approaches assessments, to improve the process.

My findings

26. I found fault on this complaint for the following reasons:
1. The records show Ms B made her request for an EHC needs assessment in May 2023 with information received from the school. There was no contact with Ms B, or any work carried out on the case, until September, four months later, and then only following Ms B chasing the Council for an update.
2. The Council had six weeks from receiving her request for an EHC needs assessment to decide whether to agree to doing it or not and sending its decision to Ms B or C. The deadline was 6 July 2023. The Council failed to meet this timescale.
3. The Council said it reached its decision to carry out an EHC needs assessment on 22 August. It failed to provide any evidence in support of this claim. There is no evidence of the decision itself, or of the Council communicating it to Ms B or C at the time.
4. The Council had to decide whether to issue an EHCP within 16 weeks from Ms B’s request for an EHC needs assessment. The Council missed the timescale of 14 September. It only reached its decision on 27 February 2024.
5. The overall statutory 20-week deadline was 12 October 2023. This was the timescale by which the Council had to complete the whole process, from receiving Ms B’s request, deciding whether to carry out an EHC needs assessment, to issuing the final ECHP. The Council missed this timescale by seven months when it issued the final EHCP in May 2024.
6. I am satisfied these failures caused Ms B and C an injustice. This is because they caused distress in the form of a lost opportunity for the Council to have reached its decision to agree to doing an EHC needs assessment and issuing a final EHCP sooner than it did. It also caused Ms B frustration and inconvenience chasing the Council about it as well as stress and anxiety.
7. The law states the process for assessing needs and developing EHCPs must be carried out in a timely manner. The Council explained several reasons for failing to meet the statutory timescales. It explained the problems it faced trying to find an educational psychologist, for example. On balance, while I am satisfied it tried without success to source an educational psychologist, I consider the delay this caused was a service failure and amounted to fault.

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Agreed action

27. I considered our guidance on remedies. I also took account of:

• the actions the Council said it has already taken to avoid similar problems in the future;
• the provision C received through the hospital education service;
• the apology the Council already gave; and
• the Council offering to look at the provision set out in the final EHCP, compare it with what she received during the period of delay, and consider a suitable remedy if there was a gap between the two.

28. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Ms B and C a written apology for failing to provide evidence in support of its claim about reaching a decision in August 2023.
2. Pay £650 to Ms B for the distress the fault caused. This is higher than we usually recommend for distress because of the age and vulnerability of C.
3. Pay £700 to Ms B for the distress, time and trouble caused by the fault found (£100 a month for the delay).
4. Produce an action plan to show how the Council will meet the statutory timescales for all stages of the process, from receiving the request for an EHC needs assessment, to issuing a final EHCP.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I found fault on Ms B’s complaint against the Council. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman