Summary: Miss X complained about delays in the Education, Health and Care (EHC) assessment of her son, Y. We find there was fault by the Council as it delayed completing an educational psychology assessment, which caused an injustice. To remedy the injustice, the Council will apologise and make a symbolic payment to Miss X.

The complaint

1. Miss X complains about how long the Council has taken to decide an EHC assessment for her son, Y. She says the Council delayed completing an educational psychology assessment.
2. Miss X says the Council’s failings have caused significant distress and uncertainty.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. 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)
6. 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

7. I discussed the complaint with Miss X and considered the information she provided. I reviewed the Council’s responses to our communication about the complaint and its correspondence with Miss X.
8. Miss X and the Council had the opportunity to comment on my draft decision. I considered all comments before making a final decision.

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What I found

Relevant Law and Guidance

9. A child or young person with special educational needs may have an 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 First-tier Tribunal (Special Educational Needs and Disability) (the tribunal) or the council can do this.
10. 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 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.
• 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 should 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.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

11. 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). 
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or after a final EHC Plan has been issued.

What happened

13. On 22 November 2023 Miss X requested an EHC assessment for her son, Y. The Council agreed to carry out this assessment on 22 February 2024.
14. In May 2024 Miss X made a stage one complaint to the Council about delays in completing the assessment. The Council upheld the complaint and explained there were local and national shortages of EPs. The Council also acknowledged delays in responding to emails from Miss X and apologised for this.
15. Miss X remained unsatisfied and asked for her complaint to be escalated to stage two. The Council responded to the complaint and acknowledged it had failed to meet statutory timescales. The Council said it had taken steps to reduce delays in completing EHC assessments by utilising private EPs.
16. On 5 September Y was assessed by an EP.
17. Miss X complained to the Ombudsman about the delay. Miss X confirmed the Council had decided not to issue an EHC Plan for Y. The Council informed Miss X of its decision in mid-October.

Analysis

18. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
19. The Council agreed to carry out an EHC assessment for Y on 22 February. In accordance with statutory timescales the Council had 16 weeks from the original request to decide whether to issue an EHC Plan. Therefore, it should have made this decision by 13 March 2024. However, the Council took approximately 30 weeks to decide not to issue an EHC Plan for Y. This was not in line with timescales and was fault. The delay caused Miss Y distress and frustration and delayed her appeal rights.
20. The Code states that Councils must seek EP advice as part of an EHC assessment. This should be received within six weeks of the Council requesting it. Therefore, it should have been received in early April 2024. However, Y was not seen by an EP until September 2024, approximately 22 weeks after it was requested. This delay was the primary reason the Council failed to issue a decision to not issue an EHC Plan for Y within 20 weeks, as required by the Code. This was fault.
21. 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 acknowledge the primary reason for the EHC Plan delay was outside the Council’s control, it is still fault. I find this is service failure as I have set out in paragraph four above, which has caused Miss X and Y distress in the form of uncertainty and frustration.
22. The Council has told us it is taken steps to resolve the issues caused by the national shortage of EPs and to reduce waiting times for EHC Plans. It has an action plan in place which includes reviewing ongoing recruitment and the structure of its EP service. Therefore, I am not making service improvement recommendations in this case.
23. In line with our guidance on remedies, I recommend a symbolic payment of £100 per month for each month of delay outside the statutory timescales, up to the point Miss X received a decision which brings a right of appeal.

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Agreed action

24. Within one month of my final decision the Council will:
1. write to Miss X and apologise for the frustration and uncertainty caused by the delays in the EHC process; and
2. pay Miss X £100 per month of delay, calculated from 13 March 2024 until the decision letter not to issue an EHC Plan was sent.

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

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Final decision

26. I have found fault by the Council causing an injustice. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman