Summary: There was fault by the Council because it took too long to respond to Ms X’s request for an Education, Health and Care needs assessment for her daughter Y. There is continuing delay in obtaining advice from an Educational Psychologist and making a decision on whether or not to issue an Education, Health and Care Plan. The Council will apologise and make symbolic payments to reflect the avoidable frustration and uncertainty.

The complaint

1. Ms X complained the Council delayed completing an Education, Health and Care (EHC) Needs Assessment and issuing an EHC Plan for her child Y. She said this caused avoidable distress and a loss of special educational provision.

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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. 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).
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 considered the complaint to us, the Council’s responses to the complaint and documents described later in this statement. A colleague discussed the complaint with Ms X.
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

What should have happened

7. 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.
• 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 EHC Plans “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 EHC Plan or refuse to issue a Plan within 16 weeks.
• 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);
8. As part of the assessment, councils must gather advice from relevant professionals, including psychological advice from an Educational Psychologist (EP) (SEND Regulation 6(1)). Those consulted have six weeks to provide the advice.

What happened

2023

9. Ms X requested an EHC needs assessment for her daughter Y, who is autistic, on 13 November 2023.
10. Ms X complained to the Council at the end of December. She said it had not made a decision on Y’s case within six weeks. The Council responded saying it was sorry for the delay, which was due to unprecedented demand.

2024

11. Ms X escalated her complaint with the Council at the start of January 2024. The Council responded at stage two saying it was sorry for the continued delay and Y’s case had been allocated to an SEN officer who should have contacted her by 12 January.
12. Ms X complained to us in the middle of February. She said she had still not had a decision from the Council on her request for an EHC needs assessment.
13. The Council agreed to carry out an EHC needs assessment on 29 February and referred Y to its EP service.
14. In April, Ofsted published its report of the inspection of the Council’s SEND service. In May, the Council updated its SEND Improvement Plan in response to the inspection. One action the Council has committed to take is “to increase the rate of EP assessments and therefore reduce the waiting time by:
• Reviewing the EP structure to maximise capacity
• Continuing with a recruitment programme
• Providing guide relating to the requirements of statutory assessment for people using independent EPs.
15. At the end of April, Ms X told us there was still no progress by the Council. We asked it for an update. The Council told us Y’s case had been referred to its EP service for advice on 29 February. It said EP reports were taking around 18 weeks.
16. The Council provided us with a second update at the end of June. It explained the delay was due to a shortage of EPs; it had recruited additional staff and was using independent EPs to assist with the backlog. The Council went on to say the delay in making a decision to assess Y was due to the school not providing information and then providing it in a format that was not accessible.
17. At the time of writing this statement (December 2024), there is no EP report or decision from the Council on whether or not to issue Y with an EHC Plan. Ms X told me the EP had recently held a meeting with Y and said their advice would be available by January or February 2025.

Was there fault and if so, did this cause injustice requiring a remedy?

18. The Council should have made a decision to carry out an EHC needs assessment within six weeks of Ms X’s request, so by 25 December 2023. It delayed by two months which was fault causing avoidable frustration and uncertainty.
19. The EP’s advice should have been available within six weeks of the request so by the middle of April 2024. This is a delay of eight months and continuing.
20. The Council should have made a decision on whether or not to issue Y with an EHC Plan by 4 March 2024 to be within the 16-week statutory timeframe. The delay is continuing. It has caused avoidable frustration and uncertainty about Y’s educational needs and any special educational provision the Council may (or may not) decide it should secure through an EHC Plan for Y. Ms X also has delayed appeal rights.
21. The Council has told us it is taken steps to resolve the issues caused by the national shortage of EPs and to reduce waiting times for EHC Plans. It has an action plan in place which includes reviewing ongoing recruitment and the structure of its EP service. It also says it schools can apply for top up funding without the need for an EHC Plan to ensure any delay in issuing a Plan does not delay the appropriate support being put in place for a child. So I do not need to make any recommendations to improve the Council’s service.

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Agreed action

22. Within one month of my final decision, the Council will:
• Apologise again to Ms X for the avoidable frustration, uncertainty and inconvenience caused by the delay in appeal rights. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make Ms X a payment of £900 to reflect the avoidable uncertainty between March and December 2024.
• Continue paying Ms X £100 a month up to the date it issues an appealable decision.
23. The Council should provide us with evidence it has complied with the actions in the previous paragraph.
24. If the decision is to issue Y with an EHC Plan, Ms X may wish to complain to the Council again if there is any future delay in the process of issuing Y with a final Plan. We usually expect complainants to use all stages of a council’s complaint procedure before coming to us.

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Final decision

25. There was fault by the Council because it took too long to respond to Ms X’s request for an Education, Health and Care needs assessment for her daughter Y. There is also continuing delay in providing advice from an Educational Psychologist and making a decision on issuing an Education, health and Care Plan. The Council will apologise and make symbolic payments to reflect the avoidable frustration and uncertainty.
26. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman