Summary: The complainant (Mrs X) said the Council had failed to comply with the statutory timescales for an Education Health and Care needs assessment for her son (Y) and had failed within its communication with her. We found fault in the Council’s delays and communication. This fault caused Y and Mrs X injustice. The Council agreed to apologise and make payments to recognise distress.

The complaint

1. Mrs X complains about the Council’s delays in completing an Education Health and Care (EHC) needs assessment for Y. She also says the Council failed to respond to her and provide updates. Mrs X says the Council’s failings caused her frustration and uncertainty.

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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. 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)
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 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

6. I spoke with Mrs X and considered the information she provided.
7. I reviewed the Ombudsman’s “Principles of Good Administrative Practice” guidance published in December 2018.
8. Mrs X and the Council had an opportunity to comment on my draft decision.

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What I found

Legal and administrative framework

EHC needs assessment

9. 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.

Communication

10. 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;
11. 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

12. Y is at the end of Year 5 and has been struggling with school attendance.
13. At the beginning of October 2023 the Council received an EHC needs assessment request for Y.
14. In November the Council refused to carry out Y’s EHC needs assessment. Three weeks later the Council changed its position on the assessment. This happened after Mrs X had asked for mediation.
15. At the end of January 2024 Mrs X said she had not been contacted by any professionals and asked the Council to commission a report from a private Educational Psychology (EP). Mrs X told the Council she did not have the details of Y’s case officer.
16. The Council replied that the shortage of EPs may impact the timeliness of EHC needs assessments. The Council said it had been working hard to reduce delays where possible, including commissioning private professionals.
17. At the beginning of February 2024 Mrs X complained about the delays in Y’s EHC needs assessment. Throughout February Mrs X contacted the Council several times about the EHC needs assessment and her complaint.
18. A month later the Council responded, explaining the delays were caused by the shortage of EPs. Mrs X asked the Council to escalate her complaint as she was not happy with the Council’s response. The Council refused to take it to stage two. It said it might be able to assess any injustice in full once Y’s EHC Plan was finalised.
19. From March to mid-May 2024 Mrs X contacted the Council many times, enquiring about Y’s assessment and suggesting the Council commissioned a private EP she had found. The Council failed to respond to many of Mrs X’s emails.
20. In mid-May the Council’s EP assessed Y and prepared her statutory advice.
21. Following the EP advice Mrs X kept contacting the Council asking about the updates to the process.
22. At the end of June 2024 the Council told Mrs X it had decided to issue an EHC Plan for Y and sent her a draft of this document.

Analysis

EHC needs assessment

23. The Council should have decided whether it would issue an EHC Plan for Y at the end of January 2024. In fact it happened at the end of June. The delay of five months in making this decision is fault.
24. I accept the Council’s delay was caused 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.
25. 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.
26. The Council’s delays with Y’s EHC needs assessment caused injustice to Y and Mrs X. Mrs X has been concerned about the right support for Y in view of his difficulties with attending school and before his transition to a secondary placement next year. The delays caused uncertainty and frustration.

Communication

27. The Council failed to communicate adequately with Mrs X throughout the process. For many weeks Mrs X did not know the details of Y’s case officer and kept asking the Council for them, as well as enquiring on the dates for Y’s EP assessment. 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 reach various members of the Council’s staff.

Service improvements

28. 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

29. 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;
• Pay Mrs X £500 to recognise the injustice caused to Y and Mrs X by the Council’s delays with Y’s EHC needs assessment;
• Pay Mrs X £150 to recognise Mrs X’s distress caused by the Council’s failure to provide adequate communication.

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

30. We also recommend the Council issue and send Mrs X within two weeks from the final decision Y’s final EHC Plan. The Council will provide us with a copy of Y’s final EHC Plan.
31. 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

32. I uphold this complaint. I found fault in the Council’s delays with the EHC needs assessment for Y and 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