Summary: The Council failed to carry out an Education, Health and Care Needs assessment for Mr X’s child, Y, within the statutory timeframes. This caused distress, frustration and uncertainty to the family. We are satisfied with the service improvements the Council is carrying out to resolve this issue. The Council will apologise and make a payment to recognise the personal injustice to Mr X and Y.

The complaint

1. Mr X complains that the Council:

• failed to complete an EHC needs assessment for his child, Y, and issue an EHC plan within statutory time limits;
• failed to respond to his request for temporary support to be put in place for Y; and
• failed to respond to his request for the Council to carry out a private educational psychologist assessment for Y.

2. Mr X says this has caused Y’s mental health to decline and she has fallen further behind in her education. Mr X also says this has caused distress to the family.

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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 an injustice, 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. 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

6. I have considered the information Mr X and the Council provided.
7. Mr X and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

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What I found

Law and guidance

EHC Plan 

8. 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.

Timeframes and process for EHC assessment 

9. 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. 
• 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).

Advice and Information for EHC needs assessments

10. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

11. Those consulted have a maximum of six weeks to provide the advice. 

What happened

12. In September 2023, the Council agreed to complete an EHC needs assessment for Y. The following month, it sent a request to the educational psychology service to assess Y’s needs and produce a report.
13. As the 20 week deadline approached for completing the assessment, Mr X complained to the Council about its delay in starting the process.
14. The Council responded confirming that statutory timeframes had been exceeded for completing the assessment. The Council apologised and said this was because of an increase in the number of needs assessments that required input from an educational psychologist. The Council explained there was a nationwide shortage of educational psychologists which contributed to the delay.
15. Mr X was unhappy with the Council’s response and escalated this to a stage two complaint in February 2024. In this complaint, Mr X asked the Council to provide a clear timeframe for completing Y’s assessment. He also asked the Council to set up temporary support for Y and to consider carrying out a private educational psychologist assessment.
16. The Council responded the following day accepting again the delay in completing Y’s assessment. The Council stated that it could not explore the complaint further at this stage and that Mr X could contact the Council again when the assessment had been finalised.
17. Mr X then complained to the Ombudsman about this issue. Following correspondence between the Ombudsman and the Council, the Council contacted Mr X again in February to ask what he remained dissatisfied about. The Council stated it would then revisit his complaint.
18. Mr X responded to the Council the same day saying he was unhappy the Council had not fully addressed his complaint. Mr X says the Council did not respond to this email further.

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Analysis

19. The Code sets out the statutory timeframes for completing an EHC needs assessment and issuing an EHC plan. We expect councils to follow these timeframes. We are likely to find fault where there are significant breaches of those timeframes.
20. If the Council decided through its EHC needs assessment that Y did need an EHC plan, the Council should have issued the final EHC plan by 2 February 2024. This is now over four months past the statutory deadline. The Council has already accepted fault for this.
21. This has caused frustration and distress to Mr X and Y. Mr X says this is because Y is falling further behind in her education. This has also caused uncertainty to Mr X and Y as without the final EHC plan, we cannot say what support, if any, Y will receive.
22. The Council has set out service improvements that it is carrying out to manage the shortage of educational psychologists. This includes increasing the number of educational psychologists employed, using locums, and undertaking virtual assessments where suitable.
23. Mr X also complained the Council failed to respond to his request for temporary support for Y, and for the Council to carry out a private educational psychologist assessment. I have seen a copy of the complaint correspondence and the Council did not acknowledge or address these complaints fully in its response. Mr X says the Council also failed to respond to the follow up email in February. While the Council was under no obligation to grant Mr X’s requests, the Council should have answered these parts of his complaint. The Council did not do this, and this is fault. This caused Mr X further frustration and uncertainty.
24. I recognise the Council has made service improvements to respond to the shortage of educational psychologists. I am satisfied with these service improvements and so will not recommend anything further here. However, I recommend the Council provide a remedy for the personal injustice caused to Mr X and Y.

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Agreed action

25. Within one month of the final decision, the Council will:

• provide an apology to Mr X for the frustration and uncertainty caused to him by failing to address all of his complaint points; and
• pay Mr X £100 per month of delay from the statutory deadline of 2 February 2024 until the date the final EHC plan (or the letter stating a decision not to issue) is sent to Mr X. This is to acknowledge the continued frustration, distress and uncertainty caused by the delay in deciding whether to issue an EHC plan.

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

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Final decision

27. I have completed my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman