Summary: We uphold complaints about delay in Y’s Education, Health and Care Needs Assessment and Plan, mainly caused by a shortage of Educational Psychologists. We also uphold complaints about poor communication by Children’s Social Care. The Council will write an apology and make payments to reflect the delay, loss of special educational provision and distress caused by poor communication. The Council will provide us with a written report of the progress it has made on reducing the backlog of cases.

The complaint

1. Ms X complained the Council took too long to complete her son, Y’s Education, Health and Care (EHC) needs assessment and issue his EHC Plan.
2. Ms X also complained the Council failed to complete a Child in Need (CiN) assessment for Mr Y in April 2023 and failed to complete CiN and safeguarding assessments in December 2023 within the appropriate timeframe, using incorrect information to minimise the risks.
3. Ms X also complained about a refusal to carry out an EHC needs assessment in 2022 and about a poor service from mental health services.

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The Ombudsman’s role and powers

4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. Northamptonshire Children’s Trust provides children’s social care services on behalf of the Council. We can investigate it. I have referred to it as the Council in this statement.
7. 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)
8. 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)
9. 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)
10. 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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What I have and have not investigated

11. I have investigated the complaints in paragraphs one and two.
12. I did not investigate the complaints in paragraph three. The refusal to complete an EHC needs assessment had a right of appeal to the SEND Tribunal which was reasonable for Ms X to use and so is not within our remit. The complaint about mental health services is not within our remit either. Ms X needs to use the NHS complaint procedure.

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How I considered this complaint

13. I considered the complaint to us, the Council’s complaint responses and documents in this statement. I discussed the complaint with Ms X.
14. 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 guidance

Children’s social care

15. Where a child’s need is low level, individual services and universal services may be able to take swift action. Where there are more complex needs, the council may offer a service under section 17 (child in need) or section 47 (child protection) of the Children Act 1989.
16. Councils must promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them (Children Act 1989, section 17)
17. A child is in need if:
• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.
18. Where a referral is accepted under section 17 the council should lead a multi-agency assessment and compete it within 45 working days. Where the council’s children’s social care decides to provide services, it should develop a multiagency Child in Need (CiN) plan which sets out which organisations and agencies will provide which services to the child and family. The plan must be reviewed within three months of the start of the child in need plan and further reviews should take place at least every six months thereafter. The CiN plan should set measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly. (Working Together to Safeguard Children)

Education, Health and Care Plans

19. A child 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. Before issuing an EHC Plan, a council carries out an EHC needs assessment.
20. The EHC Plan is set out in sections including B (the child’s SEN), F (special educational provision (SEP) required to meet SEN) and I (placement). We cannot direct changes to the sections about the child’s needs, education, or name a different educational establishment. Only a tribunal or council can do this.
21. 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;
• 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);
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan;
• Those consulted have a maximum of six weeks to provide the advice.

22. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Children and Families Act 2014, section 42).

What happened: Complaint 1

23. Y is currently in Year 11 in a mainstream secondary school, School A. He is autistic and has ADHD (Attention Deficit Hyperactivity Disorder).
24. School A requested an EHC needs assessment on 24 April 2023.
25. The Council wrote to Ms X on 11 May to say it had decided to carry out an EHC needs assessment for Y. On the same day, an EHC caseworker (the caseworker) made requests for advice from Educational Psychologist (EP) and other professionals.
26. The caseworker and Ms X had a meeting by phone in May and afterwards, sent Ms X their notes of the meeting. These contain information which would be included in Y’s EHC Plan.
27. Ms X emailed the caseworker in July, August and September requesting updates. On each occasion, the caseworker said the delay was due to the wait for the EP’s advice.
28. The EP’s report was issued on 14 November.
29. Ms complained to the Council about the delay in the EHC assessment and plan. The Council’s stage two response to the complaint apologised for the lack of a response at the first stage. It said the delay was due to high demand and a shortage of EPs and it was recruiting additional EPs. The response went on to say Y’s draft EHC Plan had been written and would be available in January 2024.
30. The Council issued the draft EHC Plan on 5 January. Ms X sent her comments on the plan back on 15 January and asked the Council to consult with School B as her preferred placement.
31. The Council consulted with School B on 22 January. It declined on the same day.
32. The Council consulted with School A, also on 22 January. The letter said it was also Ms X’s preferred placement. School A offered Y a place on 24 January. (Y was already attending School A)
33. Ms X chased the caseworker for Y’s final Plan several times between January and March. The caseworker said they were still waiting for consultation responses for Y’s post-16 placement. In the middle of March, Ms X chased the caseworker again and asked what was happening with consulting School B.
34. On 25 March, the Council issued Y’s final EHC Plan. It named School A as Y’s placement until September. It said Y’s post 16 placement from September would be a mainstream college.
35. The Council consulted School A again on 25 March. The response was to offer Y a post-16 place.
36. The Council issued an amended EHC Plan on 24 April naming School A as Y’s post-16 placement. Section F of Y’s plan set out the special educational provision he needed:
• Pastoral support or learning mentor support of 10 to 30 minutes a week to discuss peer and social relationships;
• A small team of key adults to provide trusting relationships;
• 10 to 15 minutes a week for nurturing activities, shared fun and enjoyment to build key relationships with adults;
• A high level of structure and predictability; a time out pass to use when overwhelmed or anxious;
• Weekly individual session lasting 30 to 45 minutes with a key adult to address mental health and wellbeing needs;
• A weekly session of 30 to 45 minutes for 8 to 12 weeks to address anxiety and low mood using a cognitive behavioural approach, for example “the Think Good Feel Good” programme. The adult delivering this would need training and familiarity with the programme and oversight by a trained teacher); and
• A pastoral support plan, safe space, bite size chunks of teaching, low distraction space and various aids and equipment.

What happened: Complaint 2

37. Y took an overdose in April 2023 and school reported evidence of drug use. On 6 April, a social worker did a Children and Family assessment. This set out the concerns and an initial plan of action which included a referral to mental health services. The recommendation was for a co-ordinated plan of support through a CiN plan.
38. The Council convened a strategy discussion on 9 June. This was attended by a social worker, the police, school and health. The record of the outcome of the meeting is unclear. It said professionals agreed the threshold for Section 47 Children Act 1989 was met and NCT (Northamptonshire Children’s Trust) would be completing enquiries and transferring the case to safeguarding. However, elsewhere, the record says the case would be transferred to CiN.
39. The outcome of the S47 enquiry said the case would transfer to CiN for ongoing support.
40. Ms X complained about the lack of support from social care. The Council’s first response to the complaint said it was sorry for poor communication and the social worker had left. The response went on to say there had been a strategy discussion and Y’s case would progress to the safeguarding service who would assess over a longer period. The manager said they would emphasise the importance of regular updates.
41. The Council has not provided any records to indicate the case progressed to the safeguarding service.
42. There was a CiN meeting on 20 June and a CiN Plan drawn up. This set out various actions including:
• The social worker would refer Y to mental health services;
• Another professional would complete a social story;
• Another professional would do some work with Y around gangs; and
• School A would provide daily pastoral support.
43. The record indicates there were no concerns about parenting and the professionals’ view that Y’s parents were committed to Y’s safety. The next meeting was to be arranged by the allocated social worker.
44. There is no record of any action to review the CiN Plan. And no record of any further CiN meetings.
45. At the start of July, Ms X emailed the complaints team saying she wanted to escalate her complaint to stage two. She said social care was disorganised and Y was overwhelmed with repeating his story and was now on his third social worker. Ms X asked how to discharge Y from social care.
46. The Council responded at stage two at the start of August. The letter said little to address Ms X’s concerns and repeats the apology given in the previous response.
47. In December, Ms X contacted the Council again with concerns about Y being involved in drugs, gangs and self-harming. A social worker completed a Children and Family assessment. This included information from universal services for young people which had been working with Y between June and October. They had completed sessions with Y around drug awareness, peer pressure and healthy relationships, gangs and some mental health support. There had also been some work with Ms X and Y around rebuilding their relationship; Y reported he had stopped using drugs, had changed his phone number and had no contact with peers at the point the young people’s service closed the case.
48. The outcome of the Children and Family assessment was a referral to Children and Families Support Services (universal services) for support around relationships, boundaries and trust. And for school to support Y to have positive friendships in school. The risk of child criminal exploitation was low.
49. Ms X complained a second time about the lack of contact from adult social care and about inaccuracies in the (December) assessment. The Council’s response to the complaint said:
• The social worker who completed the assessment had left. The social worker tried to phone her but could not get through and did not leave a message. They said in supervision they had tried to visit the family twice; and
• The Council offered to meet her to make a record of alleged inaccuracies and place them on the file.
50. Ms X escalated her complaint. A manager met with her to discuss the complaint and the errors on the assessment. The Council’s second response said:
• The first response to the complaint was not balanced; the agreed errors were recorded and on the file; and
• The social worker did not make adequate attempts to contact her. That worker had now left.

Was there fault and if so, did it cause injustice?

Complaint 1: The Council took too long to complete an EHC needs assessment and issue an EHC Plan.

51. I uphold this complaint. The process of assessing Y and issuing his draft and final Plan was not in line with the law and statutory guidance and this was fault. In particular:
• The EP advice should have been available within six weeks of the request by the caseworker so by 22 June. It was not available until 14 November which is an unacceptable delay of almost five months.
• The draft plan should have been issued by 13 September 2023 at the latest to allow 15 days for parental comments. It wasn’t issued until 5 January 2024: an unacceptable delay of almost four months.
• The final plan should have been issued by 28 September 2023 (20 weeks from the request for an EHC needs assessment). It was not available until 25 March 2024: an unacceptable delay of six months.
52. The delay caused avoidable distress, frustration, uncertainty and a loss of appeal rights and a delay in Y receiving special educational provision in Section F of the Plan to which Y had a legal entitlement under Section 42 of the Children and Families Act 2014.
53. The shortage of EPs is a national problem not within the Council’s control. However, we still regard not having enough staff resources to complete EP advices within the required legal timeframe to be fault. (service failure)

Complaint 2: the Council failed to complete a Child in Need (CiN) assessment for Mr Y in April 2023 and failed to complete CiN and safeguarding assessments in December 2023 within the appropriate timeframe, using incorrect information to minimise the risks.

54. The Council did complete an assessment in April. It also completed a CiN plan. There is no evidence this was followed up or reviewed to ensure the actions set out in the plan had happened. This was not in line with the Working Together Guidance and was fault causing avoidable frustration and uncertainty about the outcome had the case been properly reviewed. It appears from information on the second assessment in December that Y had been receiving support from universal services between June and October. On a balance of probability, had the CiN plan been reviewed, it is likely that the case would have been closed around October due to comments from universal services that there were no concerns for Y at that time. The failure to review the CiN plan did not cause a specific injustice.
55. In addition, there is evidence of poor record keeping and communication with Ms X about the outcome of the assessment and about decision-making. A manager met with Ms X in June to discuss her complaint. The complaint response noted Y’s case would progress to safeguarding. However, there is no evidence suggesting this happened and the case instead was dealt with under the CiN framework. The Council’s communication was unclear and contradictory causing Ms X avoidable confusion, distress and uncertainty.
56. The Council completed a further assessment in December. It accepted there were errors in that assessment, which was fault causing frustration. Ms X’s comments are now on Y’s file and this is an appropriate action to remedy Ms X’s distress. It is not our role to assess risks to Y. It is a matter for the Council to assess whether Y is a child in need or a child at risk. Communication with Ms X was poor, as was record keeping, which is fault causing avoidable confusion and uncertainty. The Council has already apologised for this which is an appropriate remedy.

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Agreed action

57. The Council will, within one month:
• Apologise for poor and confusing communication by the Children’s Social Care Service;
• Apologise for the avoidable frustration, uncertainty and loss of appeal rights caused by the delay in the EHC plan process;
• Make the following payments:
1. £150 to reflect the distress caused by poor communication;
2. £500 to reflect the five-month delay in receiving the EP advice (calculated at £100 a month); and
3. £800 to reflect the loss of just under a term’s special educational provision. Had the Council acted without delay on receipt of parental comments on the draft plan in the middle of January, Y would have had a final Plan and been receiving special educational provision in Section F from the middle of January to the end of March 2024. The payment is in line with our published Guidance on Remedies and reflects the modest special educational provision in Section F and the fact that Y continued to attend School A which was the placement named on the Plan. School A was likely familiar with his needs.
58. The Council said publicly in a cabinet meeting in March 2024 (West Northamptonshire Council aims to clear SEND plans backlog in six months - BBC News) that it intends to clear its backlog of delayed EHC Plans. A report for the meeting said only 5% of plans were completed within 20 weeks in 2023. The Council attributes the backlog to the national shortage of EPs and said the delay in receiving EP advice was the main reason requests were not completed on time. A councillor is quoted in the report saying the Council had invested half a million pounds into ‘short term additional capacity’ to get through the backlog.
59. The Council will within one month of this statement, provide us with a written report of its progress in reducing the backlog for the first six months of 2024.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. We uphold complaints about delay in Y’s Education, Health and Care Needs Assessment and Plan, mainly caused by a shortage of Educational Psychologists. We also uphold complaints about poor communication by the Council’s Children’s Social Care service. The Council will apologise and make payments to reflect the delay, loss of special educational provision and distress caused by poor communication. The Council will provide us with a written report of the progress it has made on reducing the backlog of cases.
62. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman