Surrey County Council (23 020 484)
The Ombudsman's final decision:
Summary: There was a delay in issuing Mr Y’s Education, Health and Care Plan. This caused avoidable frustration, confusion and a delay in appeal rights for which the Council has already offered an appropriate payment. The Council will apologise and make an additional payment of £7200 to reflect the loss of special educational provision Mr Y was entitled to.
The complaint
- Ms X complains the Council failed to meet the legal timescales for issuing her son Mr Y’s Education Health and Care Plan (EHC Plan). She said this caused a loss of education provision for Mr Y, avoidable distress and a loss of earnings for her.
The Ombudsman’s role and powers
- 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)
- 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)
- The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- 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 report.
- 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)
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated
- Ms X and Mr Y had a right of appeal to the SEND Tribunal against the lack of a named educational placement on Mr Y’s final EHC Plan of December 2023. However, it was not reasonable for them to use that appeal right because of the personal situation of the family (they arrived in the UK in 2022). And, the Council said in its complaint response that it would reconsult with one placement and so it was reasonable for Ms X to await the outcome of this and not to use her appeal rights. Ms X told me she did not appeal because she thought the Council was going to secure a placement.
How I considered this complaint
- I considered the complaint to us, the Council’s responses to the complaint and documents described in this statement. I discussed the complaint with Ms X.
- Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance
- A child or young person 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. 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 council can do this.
- 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:
- 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 a Council decides to assess a child’s EHC needs they must gather information from relevant professionals, who must respond within six 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.
- When a council issues a final EHC Plan, parents have a right to appeal to the SEND Tribunal if they disagree with the council’s decision, or the content of the plan. They have two months to lodge an appeal.
- Councils must secure special educational provision in an EHC Plan (Children and Families Act 2014, section 42).
What happened
Background: Delay in Educational Psychology assessments in Surrey and system of prioritising cases
- We have dealt with a number of Surrey cases about the same issue Ms X has complained about including our public report of January 2024 (reference 23000875). In that case, the Council told us it has a backlog of around 1,000 EHC needs assessments awaiting an educational psychologist assessment. It explained how its Educational Psychology (EP) Service had seen a 64% increase in referrals (since 2020) for Education, Health and Care Plans. It noted a national shortage of qualified EPs and other key professionals who provide advice as part of the needs assessment process. The core staffing was at 50%. As a result, there had been high demand for assessments but a reduced capacity in the teams that undertake assessment work.
- The Council explained how its service is taking several actions to address the delays and improve adherence to the statutory timescales. These included:
- prioritising statutory assessment work over other work;
- advertising both locally and nationally to fill positions;
- extending the use of locum and associate educational psychologists;
- commissioning an external provider to support this work;
- from May 2023 (for a limited period), allowing, subject to certain criteria, submission of independent educational psychologist assessments (commissioned by parents) in place of an assessment by its own educational psychologists.
- In July 2023, the Council’s Cabinet approved the Council’s EHC Plan Timeliness Recovery Plan to try to deal with the issues it has been experiencing due to a lack of capacity in its EP and SEND Teams. This report and Recovery Plan are publicly available. The report explains the Council had only been able to issue EHC Plans within the statutory 20 weeks in 27% of cases.
- From January 2023, the Council introduced a triaging system for new requests for an EHC needs assessment. It now uses a ‘vulnerability matrix’ to assess priority. The children it has assessed as a priority included those:
- at a Key Stage Transfer;
- in ‘Education Other Than At School’;
- with attendance below 60%;
- who had been excluded (fixed term and permanent);
- out of education;
- experiencing self-harming or suicidal ideation; or
- on a Child Protection Plan, Child in Need or Looked After Children.
- In the time before it introduced its triaging system, the Council said it had reviewed every child waiting for an EHC needs assessment that might be a priority.
Mr Y’s case
- Mr Y is currently nineteen and has special educational needs.
- Ms X requested an EHC needs assessment for Mr Y on 8 November 2022 when he was seventeen. The Council decided to carry one out on 14 December. It referred Mr Y to the EP service on the same date.
- The EP’s advice was issued on 8 September 2023. The draft EHC Plan was available on 13 December.
- Mr Y’s final EHC Plan of 20 December did not name a specific placement. It named a type of placement: a general further education college.
- Ms X complained to the Council in January 2024. The Council’s first response to the complaint in February said:
- There was a national shortage of EPs and this caused the delay
- She requested an EHC needs assessment on 8 November 2022. The Council agreed to carry one out on 13 December
- The EP advice was available in September 2023
- The draft EHC Plan was issued on 13 December 2023 and the final Plan on 20 December.
- The caseworker has sent consultations to College A (her preferred placement) and to College B (which the Council considers to be the most appropriate setting).
- Both colleges declined to offer Mr Y a place.
- The Council had asked College A to reconsider and it would let her know the outcome.
- Ms X was unhappy with the Council’s first response to her complaint and escalated it to the second stage. The Council’s second response repeated the findings of the first. It went on to say that the complaints process could not resolve the substantive issue of identifying a suitable setting. The response made some recommendations including a payment and an action plan to set out educational provision for Mr Y until the Council could find a placement.
Events since the complaint to the LGSCO
- The Council told us that since the complaint to us it had:
- Made a payment of £900 to reflect the distress and uncertainty caused by its delay.
- Agreed a further payment of £500 to reflect the impact of the delay in Mr Y.
- Put in motion requests for Surrey Choices to support Mr Y.
- Shared a further final EHC Plan with Ms X on 28 May. The intention was for Mr Y to access a preparation programme initially and then for this to grow and support to be provided to move into appropriate employment education or training from there. Requested for this provision to start this academic year.
Findings
- There was fault by the Council.
- The process of assessing Y’s education, health and care needs should have been carried out in a timely manner. A final EHC Plan should have been available within 20 weeks of 8 November 2022 so by 11 April 2023. It wasn’t available until 20 December 2023. A delay of eight and a half months which was fault causing avoidable distress and uncertainty about the special educational provision Mr Y was entitled to and a delay in appeal rights (which haven’t been used.)
- The referral to the EP service was made on 14 December 2022 at the same time the decision to assess. This means the EP’s advice should have been available at the start of February 2023 (within six weeks of the referral). It wasn’t available until 8 September. This delay of seven months is fault (service failure). Once the SEND team had the EP report, it should have issued a draft Plan incorporating the EP advice and recommendations and a final Plan within six to eight weeks. So by the first week in November. There was therefore a further avoidable delay of a month to six weeks which was additional fault.
- Mr Y is entitled under section 42 of the Children and Families Act 2014 to the special educational provision on his EHC Plan of December 2023. There was no placement named on this Plan, so the Council should have made alternative arrangements to ensure Y was receiving education including the SEP in Section F of the Plan. As a consequence, Y has missed out on almost a year of education.
Agreed action
- Within one month of my final decision, the Council will:
- Apologise in writing to Ms X and Mr Y. 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 Mr Y a payment to reflect the loss of education provision. In line with our Guidance on Remedies, a payment of £7200 for loss of educational provision is appropriate. (This is instead of the £500 payment the Council has offered)
- Ms X seeks a payment for loss of earnings. While we can make findings about the Council’s actions, and decide where there was fault, we do not have the expertise to judge the impact of the Council’s fault on Ms X’s employment and financial position. These decisions require specialist judgement and are usually made by the Courts.
- I have not recommended actions for the Council to address the delay because the improvements the Council has already committed to (see paragraphs 16 to 19) will minimise the risk of recurrence in future cases and it will take some time for the improvements to filter through.
- The Council should provide us with evidence it has complied with the actions in paragraph 31.
Final decision
- There was a delay in completing Mr Y’s Education, Health and Care Plan. This caused avoidable frustration, confusion and a delay in appeal rights which the Council has already remedied. The Council should apologise and make an additional payment of £7200 to reflect the loss of special educational provision he was entitled to.
- I completed the investigation.
Investigator's decision on behalf of the Ombudsman