• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mr X complains on behalf of his son, Y, the Council failed to obtain advice and information from an Educational Psychologist within the statutory timescales as part of the Education Health and Care needs assessment. Mr X says this has caused his son and family distress. We have found fault in the actions of the Council for not completing the Education Health and Care needs assessment or issuing Y’s Plan within the required statutory timescales. The Council has agreed to issue an apology and financial payment.

The complaint

1. Mr X complains on behalf of his son, Y, the Council has failed to obtain advice and information from an Educational Psychologist within the Statutory timescales as part of the Education Health and Care (EHC) needs assessment.
2. Mr X says this has caused his son and family distress.

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The Ombudsman’s role and powers

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. 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)
5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. 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)
8. 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

9. I have considered the information provided by Mr X and discussed the complaint with him over the telephone. I have also considered the information provided by the Council in response to enquiries I made.
10. Both Mr X and the Council were invited to comment on my draft decision. Any comments received were considered before a final decision was issued.

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What I found

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan 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. 
12. 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 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. Parents can challenge a refusal to assess by appealing to the SEND Tribunal.
• 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.
• In order to complete an EHC needs assessment the Council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests. (SEND Regulations 2014, regulation 6(1))
• If the council goes on to issue an EHC Plan, 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);
• Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
• The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

What happened

13. Mr X requested an EHC needs assessment on 3 May 2023 for his son Y.
14. The Council sent a letter to Mr X on 9 June 2023 to explain it had decided not to agree to complete an EHC needs assessment for Y. The Council explained its reasons for this.
15. Mr X was unhappy with the decision and requested mediation.
16. Before mediation took place the Council wrote to Mr X on 17 August 2023 to say it had reviewed the information originally provided again and agreed to assess Y.
17. The Council advised the Educational Psychology Service (EPS) of the decision to agree to assess Y shortly after this. Unfortunately, due to a shortage of Educational Psychologists (EPs) there was a delay in obtaining EP advice.
18. The Council communicated with the EPs between October 2023 and February 2024 to chase up the advice. The Council also communicated with Mr X during this time to explain why there were delays.
19. Mr X complained to the Council in December 2023 about the ongoing delay in issuing Y’s EHC Plan. The Council responded and apologised for the delays.
20. The Council received an EP report for Y on 4 March 2024 and agreed to issue an EHC Plan on 20 March 2024.
21. The Council issued a draft EHC Plan on 22 March 2024 and issued a Final Plan on 18 April 2024.
22. I understand Mr X has exercised his appeal rights to Tribunal to appeal the content of the plan.
23. The Council has told us it has broadened its recruitment of suitably qualified EP’s. It is also actively recruiting assistant EP’s to develop a pathway into the profession. The Council is using temporary staff to support its workforce in addition to other strategies to try to resolve the delays caused by waiting for EP advice.

Analysis

24. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
25. Following Mr X’s request for an EHC needs assessment in May 2023 the Council should have issued Y’s EHC Plan by late September 2023.
26. The Council originally decided not to assess Y in June 2023 but then after reviewing the same evidence again before mediation decided to overturn this. As the Council overturned its original decision based on evidence it always had available to it, I have used the original 20-week timeframe to calculate when the Council should have issued Y’s EHC Plan. The Council did not issue Y’s EHC Plan until April 2024 which is around 50 weeks after the request to assess.
27. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. I accept there are reasons why the EP advice took longer than it should have. However, the Council has a duty to carry out the process within the statutory timeframes. To not do so was fault by the Council as a result of service failure.
28. This seven month delay caused Mr X and his family distress and uncertainty and delayed their appeal rights.
29. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to recognise the avoidable distress or uncertainty caused.
30. I welcome the efforts the Council is making to resolve the issue of delays caused by the EP shortage, as set out in paragraph 23. I have therefore not made any service recommendations.

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Agreed action

31. Within one month the Council should:

• Write to Mr X to apologise for the faults identified.
• Pay Mr X, £700 to recognise the distress and uncertainty caused by the delay in issuing the EHC Plan. This is calculated at around £100 per month from the point the EHC Plan should have been issued.

32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have found fault in the actions of the Council for delay in completing Y’s EHC needs assessment and issuing Y’s EHC Plan.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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