Summary: Mr X complained the Council failed to complete an Education Health and Care Needs Assessment within the statutory time frame which caused him unnecessary and avoidable frustration and uncertainty. We find the Council at fault which caused injustice. The Council has agreed to make a payment to Mr X.

The complaint

1. Mr X complains the Council has failed to complete an Education Health and Care Needs Assessment within the statutory time frame which has caused unnecessary and avoidable 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. 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)

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How I considered this complaint

5. I considered the information and documents provided by Mr X and discussed the complaint with him. I considered the Council’s comments and supporting documents it provided. Mr X and the Council had an opportunity to comment on my draft decision. I have considered all comments received before making this final decision.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. I also considered the relevant statutory guidance, as set out below. I have also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

8. 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.
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 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 carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• As part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist (EP) and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice.
• 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.

What happened

10. In mid-November 2023, the Council received a request for an EHC needs assessment for Mr X’s child, B.
11. In mid-January 2024, the Council accepted the request for an EHC needs assessment and requested EP advice.
12. Between January and May Mr X spoke to the Council several times for an update.
13. In June, the Council apologised to Mr X for its delay in obtaining EP advice. It told Mr X the reason for the delay was the national shortage of EPs. It said it was unable to give an estimated time for an EP assessment for B.
14. B remains on the waiting list for an EHC assessment.

Analysis

15. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The request for an assessment for B was made in November 2023 and the Council made its decision to assess in January 2024. This took nearly ten weeks. The timescale says the Council should provide the decision to the parent within six weeks. Therefore, this was not in line with the timescale and so was fault.
16. Councils must seek EP advice as part of an EHC assessment. This should be received within six weeks of the council requesting it. In this case, it should have been received in late February. The Council has not yet received the EP advice. It has apologised to Mr X and said the national shortage of EPs and an increase in demand in assessments has led to the delay.
17. The Council is responsible for the commissioning and delivery of the EP advice and information. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. Therefore, although I accept the reason for the delay was outside the Council’s control, it is still fault. I find this is service failure as I have set out in paragraph three above, which has caused Mr X and B uncertainty and frustration.
18. The Council has recently agreed to complete an action plan to reduce delays in obtaining Educational Psychologist advice. Therefore, I am not making service improvement recommendations in this case.
19. I am satisfied the apology made by the Council to Mr X in June 2024 remedies any injustice caused by the delay in the Council making its decision to assess B in January 2024.

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Agreed action

20. Within four weeks of my final decision, the Council has agreed to make a payment of £800 to Mr X to recognise the avoidable uncertainty and frustration caused by delay in obtaining Educational Psychology advice (this is calculated from February 2024 up until October 2024) and equates to £100 per month of delay. The Council is to pay an additional £100 per month after this date for each month of delay thereafter.
21. The Council should provide us with evidence it has complied with the above actions.

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Final decision

22. I have completed my investigation. I find the Council at fault and this caused injustice. The Council has agreed to make a payment to Mr X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman