Summary: Miss X complains about the time taken by the Council to assess her child’s special educational needs and issue an Education, Health and Care Plan. Miss X also complains of the lack of communication from the Council. The Council has acknowledged it is at fault and the fault caused injustice to Miss X and her family. The Council has agreed to remedy the injustice caused to the family.

The complaint

1. The complainant, Miss X, complains the Council has delayed in carrying out an Education, health and Care needs assessment of her child and she has received very little communication on the matter.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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 decision statement.
6. 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)
7. 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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What I have and have not investigated

8. I have not investigated Ms X’s complaint about a previous decision refusing her request to assess her child in 2022 because it is out of time (as explained at paragraph 3 above) and the decision carried a right of appeal to the SEND Tribunal (as explained above at paragraph 4).
9. Miss X has complained about the actions of a different Council regarding her child’s request for a needs assessment, but I am unable to investigate it here because this complaint is in relation to Suffolk County Council’s actions from when they received the request.

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How I considered this complaint

10. I considered Miss X’s complaint and the information she provided.
11. I considered the information I received from the Council in response to my enquiries.
12. Miss X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making this final decision.

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What I found

Relevant law and guidance

13. 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. 
14. 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);
• 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.
15. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).

What happened

16. Miss X, has a child, Y, who attended mainstream school. In October 2023 Y’s school submitted an assessment request for his education, health and care needs to a Council in an area where Y used to live. This was then forwarded to the Council.
17. On 31 October 2023, the Council agreed to assess Y.
18. The Council allocated a case worker but they left their post before Y’s case was presented to the Council’s Panel. Miss X contacted the Council because she had not received any communication. Miss X was advised that a new caseworker would be allocated in due course.
19. In January 2024, Miss X contacted the Council again because Y’s case was due to go before the Panel this month but an EP assessment had not been arranged yet and a caseworker had still not been allocated.
20. Miss X had not received any update from the Council and at the beginning of February 2024 she contacted the Council and asked to discuss the matter with the manager of the previous caseworker to find out why the cases were not handed over to a new caseworker when they left their post. Miss X contacted the Council on several occasions but she did not receive a call back.
21. Later in February 2024, Miss X called the Council again because the statutory deadline to complete the assessment had passed. Miss X contacted the Council again and it told her it would chase the matter up with the EP department. The Council contacted Miss X to say it had no further update and could not provide a timeframe for when the EP assessment would take place.
22. Miss X was allocated a caseworker but there were still no updates regarding the EP assessment.
23. Miss X submitted a Stage 1 complaint to the Council. Miss X was concerned because Y was due to start school in September 2024 and he needed an EHC Plan to ensure his special educational and health needs would be met. Miss X was also frustrated with the lack of information and communication she had received from the Council.
24. The Council responded to Miss X’s Stage 1 complaint. It confirmed it had received the needs assessment request in October 2023, it acknowledged there was a delay in completing the assessment and this was due to the national shortage of EPs. The Council acknowledged it had missed the statutory deadline to complete the assessment within 20 weeks and it apologised for the delay. The Council asked its EP service to prioritise Y’s case and said it was unable to give any timescales for when an EP would be allocated to Y.
25. The Council also apologised for the difficulties Miss X experienced when contacting the Council. It said that challenges around capacity had affected communication with families and timeliness of responses to enquiries. The Council said that while they are waiting for an EP assessment, communication with parents is minimal as there are usually no updates until the assessment has been received. It advised Miss X to contact her case worker via email in future and allow up to 3 working days for a response.
26. Miss X was unhappy that there was no resolution to her complaint and she requested that her complaint be escalated to Stage 2 of the Council’s complaint process.
27. In its response to Miss X’s request for escalation, the Council reiterated that the delay in assessing Y was due to a shortage of EPs and further consideration of her complaint could not provide anything new. It refused to escalate her concerns and advised her she could approach the Ombudsman if she remained dissatisfied.
28. An EP assessment was completed in May 2024 and the report was issued in June 2024.
29. Y’s EHC Plan was finalised in July 2024.

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Analysis

Delays in completing Y’s EHC needs assessment and issuing a final EHC Plan

30. The Council was at fault for delays in completing its assessment of Y’s needs. The Council issued the final EHC Plan 5 months later than it should have. This is fault.
31. The delays were due to the Council having a shortage of EPs. I cannot see what action the Council took to find an alternative EP for Y. This could have included asking an independent EP or approaching other councils, as it knew it would not be able to allocate an EP to Y to meet the statutory timescale for carrying out the EHC needs assessment. This was fault.
32. Miss X’s appeal right was delayed, there was a period of uncertainty and frustration caused by the fault. This caused avoidable distress that the Council has not remedied. In cases where there have been delays issuing an EHC plan because of a shortage of EP’s, we recommend £100 per month from when the final plan should have been issued until the actual date the Council issues a plan. I have made a recommendation to remedy the injustice caused to Miss X due to the delay and this avoidable frustration this caused to the family.
33. Normally we would ask the Council to make service improvements in these situations, however we have done this in other similar cases. The Council told us it has a plan to recruit more full-time staff in its Special Educational Needs team, recruit more EP’s and implement virtual assessments to address these delays. In light of this, I have not made a service improvement recommendation.

Communication with Miss X

34. After the Council agreed to assess Y’s needs it does not appear it kept Miss X updated with the process. Miss X contacted the Council several times for updates, she did not always receive a call back, she had to chase the Council and when the Council did respond to her communication it said it was unable to provide her with a timescale. Miss X and her family did not find this helpful. It added to the frustration and uncertainty they were already experiencing due to the delays.

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Agreed action

35. To remedy the injustice caused by the identified faults, the Council has agreed, that within four weeks of this final decision, it will:
• Provide Miss X with a written apology for the identified faults;
• Pay Miss X £500 for the delays in issuing Y with a final EHC Plan;
• Pay Miss X £250 to acknowledge the avoidable distress caused.
36. The Council will provide us with evidence it has complied with the above actions.

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Final decision

37. The Council is at fault, and it has agreed to remedy the injustice caused to Mrs X and her family. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman