Summary: We found fault in the way the Council carried out an Education Health and Care needs assessment for the complainant’s (Mrs X) daughter (Y) and in the Council’s communication with Mrs X. This fault caused Y and Mrs X injustice. The Council agreed to apologise, issue a draft Education Health and Care Plan for Y, re-consider Mrs X’s request for an Occupational Therapy assessment for Y and make payments to recognise delays and distress. The Council also agreed to carry out some service improvements.

The complaint

1. Mrs X complains about the Council’s:
• delays in completing an Education Health and Care (EHC) needs assessment for Y;
• failure to carry out dyslexia and sensory processing assessment for Y;
• inadequate communication.
2. Mrs X says the Council’s failings caused her frustration and uncertainty.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
6. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

9. I spoke with Mrs X and considered the information she provided.
10. I reviewed the Ombudsman’s “Principles of Good Administrative Practice” guidance published in December 2018.
11. Mrs 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

Legal and administrative framework

EHC needs assessment

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:
• Where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• Where councils decide it is not necessary to issue an EHC Plan for a child, they should notify the parents within 16 weeks from the date they received request for an EHC needs assessment.
13. In seeking advice and information the local authority should consider with professionals what advice is necessary to ensure the assessment covers all the relevant education, health and care needs of the child. The local authority must seek advice from any person requested by the child’s parents where the local authority considers it reasonable to do so. (Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.49)

Communication

14. Our ‘Principles of Good Administrative Practice’ guidance published in December 2018 sets up the standard we expect from the councils when investigating their actions. Councils should be service user focused by:
• Informing service users what they can expect and what the organisation expects of them;
• Keeping to commitments, including any published service standards;
• Dealing with people helpfully, promptly and sensitively, taking account of their individual circumstances;
15. Local authorities should support and encourage the involvement of children, young people and parents or carers by:

• Providing them with access to the relevant information in accessible formats;
• Giving them time to prepare for discussions and meetings, and
• Dedicating time in discussions and meetings to hear their views.

(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24)

What happened

16. In mid-September 2023 the Council received a request for an EHC needs assessment for Y. Five weeks later the Council agreed to carry out this assessment.
17. At the beginning of December Mrs X asked the Council to get advice from an Occupational Therapist (OT) on Y’s sensory needs and from a dyslexia specialist.
18. Mrs X asked the Council for an update at the beginning of January 2024. Two days later she complained about the Council’s non-compliance with the statutory timescales for an EHC needs assessment. She also said she had no response to her request for an OT and dyslexia assessments for Y.
19. At the beginning of February the Council responded to Mrs X’s complaint. It said:
• The delays were caused by the shortage of Educational Psychologists (EP);
• If there are any assessments that parents believe are outstanding the Council can help by contacting relevant professionals but the Council will not commission these assessments;
• The needs associated with dyslexia are indicated through the dyslexia screener at school. Schools are expected to meet dyslexia needs through the Quality First Teaching. The Council would not support a formal dyslexia assessment.
20. Mrs X was not happy with the Council’s response. She asked the Council to commission a private EP to provide statutory advice for Y. She also queried the Council’s position on the OT and dyslexia assessments as she was aware some people had these assessments funded by the Council.
21. In the third week of February the Council confirmed its position on dyslexia assessments and offered a virtual EP assessment for Y, which might reduce waiting time.
22. At the end of April a locum EP was allocated to prepare statutory advice for Y’s EHC needs assessment. Y’s case officer told Mrs X once the assessment was completed, the Council would draft Y’s EHC Plan.
23. The Council received the EP advice for Y in the third week of May 2024.
24. Throughout May and June the Council failed to respond to Mrs X’s correspondence asking for the updates and expressing concerns about an EP assessment and lack of OT assessment.
25. At the beginning of July the Council’s senior EP contacted Mrs X and offered to address Mrs X’s concerns about some aspects of the EP advice. Two weeks later some amendments were made to the EP statutory advice for Y.
26. In response to my query whether the Council has sent Mrs X its decision following Y’s EHC needs assessment, the Council said it had received the EP report and would be drafting Y’s EHC Plan.

Analysis

EHC needs assessment

27. The Council should have decided whether it would issue an EHC Plan for Y and should have sent Mrs X a draft EHC Plan at the beginning of January 2024. Mrs X still has not received a draft EHC Plan. The delay of over six months within the EHC Plan process is fault.
28. I accept the Council’s delay was caused originally by the delay in getting EP statutory advice. We are aware there is a nationwide shortage of EPs and, provided we are satisfied that councils put in place measures to mitigate the impact of this shortage on their services, we would see the delays caused by the unavailability of EP statutory advice as service failure rather than maladministration.
29. In its response to our enquiries in the recent complaint 23 016 770 the Council told us it had taken steps to reduce the delays in getting EP advice. It has increased the number of substantive EP posts within the Council, has been using locum EPs and undertaking virtual assessments where appropriate. One of the locum EPs eventually prepared EP statutory advice for Y.
30. The Council’s delays cannot be explained just by the shortage of EPs. Even after getting the EP advice the Council failed to draft an EHC Plan in a timely manner, which is maladministration rather than service failure.
31. Apart from the non-compliance with the statutory timescales, when carrying out Y’s EHC needs assessment the Council also failed to:
• tell Mrs X it had decided to issue Y’s EHC Plan. This is fault as throughout May and June, despite having the EP statutory advice, Mrs X was uncertain about the Council’s intentions.
• Consider Mrs X’s request for extra assessments in a timely manner. As pointed out in paragraph 13 of this decision the Council must make a decision when parents ask for an extra assessment. Mrs X asked the Council to contact an OT and dyslexia specialist at the beginning of December 2023, but the Council only responded two months later, after Mrs X had complained. The delay in the Council’s response is fault.
• Give legitimate reasons for the Council’s refusal to carry out an OT assessment. In view of the wording of the paragraph 9.49 of the Code the Council can only refuse an assessment requested by a parent if it does not consider it reasonable. By stating it does not commission OT assessments the Council suggests it applies a blanket policy. After receiving parental request for an assessment the Council should consider individual circumstances to decide whether the request is reasonable.
32. The Council’s delays and other failings within Y’s EHC needs assessment caused injustice to Y and Mrs X. Mrs X has been concerned about identifying Y’s needs and support required before her transition to a secondary placement next year. The delays caused uncertainty and frustration.

Communication

33. The Council failed to communicate adequately with Mrs X throughout the process. For many weeks Mrs X did not know when the Council would allocate an EP for Y, whether it had decided to issue an EHC Plan for Y and when this plan would be drafted. On many occasions the Council failed to respond to Mrs X’s communications, which increased her frustration and meant she spent a lot of time trying to get information from the Council.

Service improvements

34. In response to the Area Special Educational Needs and Disabilities (SEND) inspection carried out in November 2023 by Ofsted and Care Quality Commission, in February 2024 the Council prepared its SEND Local Area Partnership Priority Action Plan. One of the priority actions identified is improving the timeliness and quality of the statutory EHC Plan processes. From May 2024 the SEND Improvement Board has been using performance information to assess and challenge progress and deliver improved outcomes for children and young people with SEND.

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Agreed action

35. To remedy the injustice caused by the faults identified we recommend the Council complete within four weeks of the final decision:
• Send a written apology to Mrs X following our guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice;
• Re-consider its decision in response to Mrs X’s request for an OT assessment, applying the criteria indicated in paragraph 9.49 of the SEND Code of Practice;
• Pay Mrs X £600 to recognise the injustice caused to Y and Mrs X by the Council’s delays with Y’s EHC needs assessment;
• Pay Mrs X £200 to recognise Mrs X’s distress caused by the Council’s failure to provide adequate communication and by its failings when responding to Mrs X’s request for extra assessments.

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

36. We also recommend the Council send Mrs X within two weeks from the final decision Y’s draft EHC Plan. The Council will provide us with a copy of Y’s draft EHC Plan.
37. We recommend the Council within three months of the final decision review its process of responding to the parental requests for extra assessments during their children’s EHC needs assessments. This is to ensure the Council responds in a timely manner and, when making its decision, applies the test set up in paragraph 9.49 of the SEND Code of Practice based on the SEND Regulations 2014 regulation 6(1)(h). The Council will provide us with the evidence it has done this.
38. We also recommend the Council’s SEND Improvement Board within four weeks of the final decision review this decision to inform its further work on improving the Council’s SEND services. The Council will provide us with the evidence it has happened.

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Final decision

39. I uphold this complaint. I found fault in the way the Council carried out the EHC needs assessment for Y and in the Council’s communication with Mrs X. The Council’s fault caused injustice to Y and Mrs X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman