Summary: Ms X complained about delay in the Council’s Education Health and Care Needs assessment for her son, S. The delay is because of a shortage of Educational Psychologists. The Council is at fault for delay issuing an Educational Psychologists report and Education, Health and Care Plan.

The complaint

1. Ms X complained about delay in the Council’s Education Health and Care Needs assessment for her son, S. The Council told Ms X the delay is because of a shortage of Educational Psychologists.

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The Ombudsman’s role and powers

2. 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)
3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
4. 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)

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What I have and have not investigated

5. I am only considering the delay in the Council’s assessment process. I am not considering the Education, Health and Care Plan itself. If Ms X is not satisfied with the Final Plan, she has a right of appeal to the Tribunal.

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How I considered this complaint

6. As part of the investigation I have considered the complaint and the information provided by Ms X.
7. I have made enquiries of the Council and considered its response with relevant law and guidance.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What should happen

9. 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. 
10. 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

11. 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. 

12. Those consulted have a maximum of six weeks to provide the advice. 
13. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.

What happened

14. I have summarised below the key events; this is not intended to be a detailed account.
15. At the beginning of October 2023, Ms X asked the Council to complete an EHC needs assessment on her son, S. At the beginning of November, the Council agreed to assess S.
16. The Council asked for information from the relevant professionals. Their responses were due just before Christmas.
17. In late February 2024, Ms X complained to the Council. She said the Council agreed S fits the criteria for an EHC needs assessment but had not progressed the case and she had not received an update. She referred to the long waiting list for an EP report and said she is happy to pay privately.
18. The Council issued a stage one complaint response in the middle of March. It apologised for its failure to issue a draft EHC Plan and referred to the delay in the EP report. The complaint letter responded to Ms X’s request to pay for this privately and explained it had not been standard practice. This is because a senior EP must review private reports before the Council will accept them. It explained the Council has reflected on this, taken legal advice and agreed to consider using private reports on a case-by-case basis. If the report meets the standard, and a Council has not already prepared a report, it will use the private report as advice.
19. Ms X asked the Council to review her complaint. The Council issued a stage two response in the middle of April. It explained the stage one response upheld Ms X’s complaint and acknowledged the delay. It said where there is a ‘private report in existence, and this is found to provide sufficient quality information in order to complete a statutory assessment, we may then be able to use this advice…It is important to understand that there is no guarantee that it will be possible for any specific report to be used for this purpose.’
20. The complaint response said while it cannot give definite timescales, it expected S’s case to be allocated to an EP within three months. This was the same timeframe as a private assessment. The Council said it would not be any quicker for S to go privately.
21. Ms X complained to the Ombudsman at the beginning of May 2024. She said if the Council cannot provide an EP report within the timeframe, it should allow parents to organise a private assessment and pay for this. She said she would like the Council to refund her for the EP report and make changes so other families do not experience the same delay as her and S.
22. Ms X got a cancellation with the private EP who completed a report on S. Ms X paid for this herself. Ms X shared the advice with the Council in May. The Council checked the quality and confirmed it was sufficient for the statutory assessment.
23. The Council issued a draft EHC Plan in June and a second draft in July. The Council issued a final EHC Plan towards the end of August. The plan references the privately commissioned advice from the EP.

Analysis

24. Where a 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. In this case, Ms X asked for an EHC needs assessment in October and received a decision in November. This was within the six-week period. The Council is not at fault.
25. The Council must ask relevant professionals for information before it can do the EHC Needs Assessment. The professionals consulted must provide their responses within six weeks. The EP should have provided their response before Christmas 2023. The EP missed this deadline. This is fault.
26. The Council should issue the final EHC Plan within 20 weeks. This means the final EHC Plan was due in February. The Council issued the final EHC Plan in late August. This is a delay of roughly seven months. This is fault.

Injustice

27. The Council should provide an EP report to enable a timely preparation of an EHC Plan. Ms X paid for the EP report privately. This is financial injustice.
28. The Council delayed issuing S’s EHC Plan, causing frustration and uncertainty. This is distress, this is injustice.

The Council’s response to my enquires

29. In response to my enquiries, the Council said it has a waiting list for children to receive EP reports before it can complete assessments and draft EHC Plans. It said it has enacted several internal measures to reduce the delay while keeping efficiency and quality. The Council said it has strengthened the workforce by contracting associate and locum EPs and is recruiting EPs from abroad. It has also contracted an external provider of EPs to support assessments of children who are outside the timescales. The Council has a rolling advert to recruit EPs and is ‘growing their own’ by recruiting trainees and assistants. The Council said it is allocating assessments to EPs and the wating list is decreasing.
30. In response to my enquiries, the Council proposed to pay Ms X the cost of the private EP report upon receiving an invoice. It also offered to apologise and pay Ms X a symbolic remedy payment of £700 to recognise the impact of the delay issuing the EHC Plan. I welcome the Council’s acknowledgement of the injustice caused by the fault in this case and its proposed remedy, which is in line with the Ombudsman’s guidance on remedies.

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Agreed action

31. Within four weeks of the final decision, the Council agreed to fulfil its proposed remedies which are to:
• refund Ms X for EP report, on receiving an invoice; and
• apologise to Ms X and pay £700 to recognise the impact of the delay issuing the EHC Plan.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation. The Council is at fault for delay issuing an EP report and EHC Plan.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman