Summary: Mrs E complained the Council caused and continues to cause, delays in the Education, Health, and Care needs assessment process for her daughter. The Council accepted it caused a service failure. It should make payment to Mrs E to acknowledge the injustice its delays have, and continues to, cause.

The complaint

1. The complainant, Mrs E, complains the Council:
• caused delays and refused to assess her daughter (X) for an Education, Health, and Care (EHC) plan in 2023; and
• when it subsequently agreed to assess X, it has failed to adhere to the statutory timescales to complete her EHC needs assessment process.
2. Mrs E says, as a result, she has experienced distress and uncertainty. She also said X experienced a missed opportunity to receive special educational needs provision.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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.
7. 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

8. As part of my investigation, I have:
• considered Mrs E’s complaint and the Council’s responses;
• discussed the complaint with Mrs E and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• had regard to the law, guidance, and policy relevant to the complaint.
9. Mrs E and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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 found

Relevant law

11. 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. 
12. 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. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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.

13. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s educational placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.
14. Those consulted have a maximum of six weeks to provide the advice.

What happened

15. Mrs E’s daughter (X) is of compulsory school age. She has been diagnosed with some health issues which impacts her ability to receive her education. She has received some support from health professionals since 2021.
16. In September 2022 X started in a school. The school put in place support for X to enable her to best receive her education.
17. Mrs E said in Spring 2023 the school asked the Council to complete an EHC needs assessment for X. The Council says it did not receive a request from the school or Mrs E at the time.
18. In July 2023 the Council shared a form, ‘Permission form for parents, carers or young person – relating to the Education, Health, and Care (EHC) plan process’ with Mrs E. She signed the form which gave the Council consent to consult with professionals following a request for a needs assessment.
19. In October 2023 X’s school shared more information about X and asked the Council to complete an EHC needs assessment for her. The Council acknowledged the request and informed Mrs E.
20. In November 2023 the Council refused the request to complete an EHC needs assessment for X. It explained this was because it found X’s needs could be met by using the ordinary provision and resources available within her school. It informed Mrs E and shared her rights of appeal to the SEND Tribunal. It also explained, in line with is practice, she could request a Way-forward meeting’.
21. Mrs E told the Council she disagreed and intended to appeal its decision. The Council suggested a meeting to discuss the case and seek further information. The meeting took place in late January 2024, where it said it’s panel would consider X’s case the following week and Mrs E would be informed about the outcome.
22. The school also shared information around X’s needs and performance in subject specific assessments conducted in January 2024 with the Council.
23. In February 2024 the Council decided it would complete an EHC needs assessment for X. It explained it would allocate an educational psychologist to assess X. It would then seek further information, as relevant, to complete her needs assessment.
24. In June 2024 X had still not been allocated an educational psychologist, and Mrs E complained to the Council as X was yet to be assessed by an educational psychologist for the EHC plan process.
25. In response the Council accepted it had failed to adhere to the statutory timescales of the EHC plan process for X. It explained it has a backlog of cases due to issues around recruitment and retention of educational psychologists. It has a SEND improvement plan in place, but the delays a likely to continue for some time.
26. Mrs E asked the Ombudsman to consider her complaint.
27. The Council has since confirmed X is yet to be assessed by its educational psychologist and she remains on its waiting list.

Analysis and findings

EHC needs assessment delays

28. The Council says it received the School’s EHC needs assessment request in October 2023, but it did not receive an earlier request for the school or Mrs E. It has accepted it has caused, and continues to cause, delays in X’s EHC needs assessment process since February 2024 when it agreed to complete her assessment. This is due its inability to retain and recruit enough educational psychologists.
29. The Council therefore caused a service failure for failing to adhere to the statutory timescales for the EHC plan process. The delay was from late April 2024 when it should have issued its decision whether to issue an EHC plan or not for X.

Was there an earlier request for a needs assessment?

30. Mrs E said the Council’s delays started earlier as X’s school requested an EHC needs assessment in Spring 2023.
31. I have no evidence of the school making a request for an assessment for X in Spring 2023. However, in July Mrs E signed the Council’s ‘Permission form for parents, carers or young person – relating to the Education, Health, and Care (EHC) plan process’. The form shows this is used when a parent or young person has made a request for an EHC needs assessment.
32. On balance, I am therefore satisfied Mrs E or X’s school made a request for X to be assessed which was effective from when she signed her consent in July 2023. The Council subsequently had 6 weeks to reach its decision whether to complete a needs assessment.
33. It took the Council until late November 2023 to issue its decision not to assess X. This was therefore fault, which caused a three-month delay. However, I cannot say the Council’s decision to complete an EHC needs assessment for X would have happened sooner than February 2024. This is because this decision was partly revised due to information received from X’s school in January 2024. I was also conscious Mrs E had appeal rights regarding its initial refusal to the SEND Tribunal.

Injustice and service improvements

34. I am satisfied Mrs E experienced frustration and uncertainty as a result of the Council’s delays. Its apology is not enough to remedy the injustice it caused, which resulted from:
• the three-month period of delay in Autumn 2023 where it should have issued its decision whether to complete an EHC needs assessment for X or not; and
• delay from late April 2024, and ongoing, as X is yet to be assessed.
35. I cannot say whether X experienced injustice, or what this was, as it is yet unknown what special educational needs provision she should receive, if any.
36. We have investigated other cases for the Council and have reviewed its action plan to address the backlogs and delays in the EHC needs assessment process. As we are satisfied with the steps it is taking to address this, I have not made further service improvements.

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Agreed action

37. To remedy the injustice the Council caused to Mrs E, the Council should, within one month of the final decision:
• pay Mrs E a symbolic payment of £100 per month to acknowledge the past and future injustice (frustration and uncertainty) the Council’s service failure caused her. This will be until it has completed its Education, Health, and Care needs assessment for X and issued its decision to Mrs E.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation with a finding the Council was responsible for a service failure which caused Mrs E an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman