Summary: Ms C complains the Council has delayed in completing an Education, Health, and Care needs assessment for X. The Council is at fault for failing to assess X within the statutory timescales. This has caused Ms C frustration, time, and trouble. To remedy the complaint the Council has agreed to apologise to Ms C and make her a symbolic payment.

The complaint

1. Ms C complains about the Council’s delay in completing an Educational, Health, and Care needs assessment for X. This has caused her frustration and anxiety support would not be in place for when X moved into secondary school.

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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. 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)
4. 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

5. I spoke with Ms C and considered information she sent. I also considered:-
• Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’);
• Children and Families Act 2014;
• Special Educational Needs Regulations 2014;
• complaint correspondence.
6. Ms C 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

What should have happened

EHC plan

7. 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 are needed to meet them.

Timescales and process for EHC assessment

8. 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;
• if a decision is made that an EHC plan is not necessary it must be made within 16 weeks from the date the assessment is requested;
• the whole process from the point when an assessment is requested until the final EHC Plans is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.

What happened

9. The request for an EHC needs assessment was made on 8 June 2023. The Council initially refused the request but following mediation it agreed to complete an EHC needs assessment for X on 27 September 2023. Following Ms C’s complaint to the Ombudsman the Council has now started the assessment. The Council says it could not start an assessment earlier because of a shortage of Educational Psychologists (EPs).
10. Ms C says the delay has caused her anxiety and uncertainty about whether the support X now has at secondary school meets his needs.

Is there fault causing injustice?

11. The Council should either have issued a draft EHC plan by 26 September 2023, or made a decision not to issue a plan by 28 September 2023. The Council has started the assessment but until it either issues a draft EHC plan or assesses a plan is not needed; the delay is ongoing.
12. The Council’s complaint response explained the delay was caused by the shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for the service failure. While I accept the reasons for the delay, this is fault.
13. The delay has caused stress, upset, anxiety, frustration and worry for Ms C.

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Agreed action

14. I have found fault in the actions of the Council which has caused X and Ms C injustice. The Council says a national shortage of educational psychologists caused the delay in the assessment. It says it has taken several steps to improve the situation. We have previously found (Complaint 23018404) the Council is acting to respond to the increased demand for EHC needs assessments and to manage the shortage of Educational Psychologists. As these actions are ongoing I have made no service improvement recommendations for this part of the complaint.
15. The Council has agreed to take the following actions to remedy the personal injustice caused to Ms C and X.
16. Within one month of the final decision the Council will:-
1. apologise to Ms C for the anxiety and frustration caused by delay in the Education, Health, and Care assessment for X;
2. pay Ms C £1200 in recognition of the anxiety, frustration and uncertainty caused by the Council’s delay in X’s Education, Health and Care assessment. This remedy is roughly £100 per month from the date the Council should have either issued or made a decision about an EHC plan. The Council should continue payments of £100 per month from 1 October for any continued delay.
17. The Council should provide us with evidence it has complied with the above actions.

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Final decision

18. I have completed my investigation and closed the complaint on the basis of the above agreed action.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman