Summary: Miss X complained the Council failed to complete an Education, Health and Care needs assessment for her son within statutory timeframes. We found the Council at fault for significant delays. The Council has now offered a proportionate remedy and we are satisfied this is appropriate to recognise the injustice caused.

The complaint

1. Miss X complains about the Council's failure to complete an Education, Health and Care (“EHC”) needs assessment for her son within statutory timeframes. She says this has caused her frustration as the delay has impacted on him as he is struggling at school and appropriate support cannot be put in place until it is completed.

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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. 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)
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)
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 discussed the complaint with Miss X and considered her views.
7. I considered the information the Council provided in respect of this complaint.
8. Miss 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

Law and administrative background

Education, Health and Care Plans (EHC Plans)

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. 

• 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 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).  

11. As part of the EHC needs assessment, councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice.
12. Parents have a right of appeal to the SEND Tribunal. This is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

What happened - summary of key relevant events

13. In late October 2023, Miss X made a request for an EHC needs assessment for her son (“Y”). Miss X made a formal complaint to the Council as it had delayed with a draft plan and was in breach of statutory timeframes for the assessment.
14. In mid-March 2024, the Council responded at Stage One. It said due to the lack of Educational Psychologists (“EPs”) across the UK, it was impacting upon its ability to meet legal timescales. It apologised and said it was not in a position to issue a draft EHC Plan until it received advice from an EP.
15. Miss X was dissatisfied with the response and tried to escalate her complaint. The Council said there was nothing further it could add and signposted her to us. In April 2024, Miss X complained to us.
16. In mid-July 2024, the Council said it had allocated an EP to Y’s case.
17. In mid-August 2024, the Council confirmed it had now issued a final EHC Plan for Y.
18. During my investigation, the Council proposed it would offer a remedy of £550 to recognise Miss X’s injustice.

Educational Psychologist shortages

19. In response to enquiries on other recent complaints on similar matters, the Council has told us it has 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 has been undertaking virtual assessments where appropriate.

Analysis

20. The Council received the request for the EHC needs assessment in October 2023. If a council decides to issue an EHC Plan, it should do this within 20 weeks of a request. In this case, by mid-March 2024. The Council did not do this until mid-August 2024. This is a significant delay of around five months.
21. I acknowledge the delay was caused by the national shortage of EPs, however statutory guidance is clear regarding timescales and the Council failed to meet this; this is fault in the form of service failure. This caused frustration and uncertainty for Miss X as she had to wait notably longer than necessary to receive a final EHC Plan. This has also delayed her statutory right of appeal should she disagree with it.
22. I welcome the Council’s proposed offer to remedy Miss X’s injustice. It has calculated it at roughly £100 per month past the statutory deadline. This is proportionate and appropriate.
23. The Council has a suitable plan in place to take steps to increase EP capacity across the service to support EHC needs assessments. Therefore, I have not considered it necessary to make any service improvement recommendations.

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Agreed action

24. To remedy the personal injustice set out above, the Council has agreed to carry out the following actions, within one month of the final decision:
• Apologise in writing to Miss X for the frustration, distress and uncertainty caused by the Council’s delays in issuing a final EHC Plan for Y; and
• Pay Miss X a symbolic payment of £550 to recognise her injustice.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I found fault with the Council which caused injustice to Miss X. The Council has offered a proportionate personal remedy to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman