Summary: Mrs B complained that the Council had delayed, and continues to delay, in completing an Education, Health and Care (EHC) needs assessment for her son C and issuing an amended EHC Plan. The Council has apologised of the delay and offered a payment of £300 to Mrs B. We found fault. The Council has agreed to increase the payment to £500 and issue the final EHC Plan without further delay.

The complaint

1. Mrs B complained that Suffolk County Council (the Council) delayed in completing an Education, Health and Care (EHC) needs assessment in respect of her son, C. It agreed to reassess on 15 November 2023 but has still not completed the process. Due to the length of the delay, the Council needs to obtain a new educational psychology assessment and this is taking longer than usual due to a national shortage of educational psychologists. The delay means that C is without the appropriate support and Mrs B has been caused distress and frustration in chasing up the Council.

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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)

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How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.
5. 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

EHC needs assessments

6. 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 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 (unless certain specific circumstances apply);  

7. 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. 

8. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  

What happened

9. Mrs B’s son C has a EHC Plan. On 15 November 2023 she requested a reassessment of his needs. The Council agreed to this the same day but did not notify Mrs B in writing.
10. In December 2023 Mrs B requested the Council seek advice from a clinical psychologist which she would arrange. There is no record of the Council responding to this request. Mrs B went ahead and booked an assessment for C with the clinical psychologist. Around the same time the Council requested advice from a Council educational psychologist.
11. In January 2024 Mrs B sent 10 reports to the Council including a private educational psychology report from August 2023. The Council also sought advice from three other professionals and organisations. It also confirmed to us that it would reassess C.
12. In early April 2024 a new caseworker took over C’s case and met with Mrs B to discuss progress with the case. Mrs B agreed to send the clinical psychology report to the Council once she had received it.
13. In May 2024 Mrs B sent the clinical psychology report to the Council.
14. On 8 June 2024 Mrs B complained that C’s amended EHC Plan was now eight weeks overdue. She requested the Council use the educational psychology report she had already submitted from August 2023.
15. The Council responded in July 2024. It acknowledged and apologised for the delay in completing the assessment and explained this was due to a national shortage of educational psychologists. The Council confirmed it would use the private report to produce a draft EHC Plan within the next four weeks. It apologised for not agreeing to do this at an earlier stage. But it said it would still obtain a new report from an educational psychologist because C’s provision had changed in the previous 12 months, and it felt it was important to get an up-to-date view of C’s needs.
16. The Council offered Mrs B £300 for the delay in producing the final EHC Plan and giving her a formal right of appeal against it.
17. Mrs B responded that 33 weeks had passed since the Council agreed to the reassessment and £300 was insufficient. The Council refused to take the complaint to stage two of its complaints procedure and directed Mrs B to us.
18. In early August 2024 C’s case was allocated to an educational psychologist. On 30 August 2024 the Council issued a draft EHC Plan. It said C had received the provision in his current EHC Plan throughout the period of assessment.

Analysis

19. The Council failed to confirm in writing to Mrs B that it had agreed to carry out a EHC needs assessment. It confirmed this to us in January 2024, two months after her request. This was fault as Mrs B was uncertain whether the assessment was proceeding.
20. The Council should have completed the assessment and issued a final EHC Plan by 3 April 2024, 20 weeks after the date of the request on 15 November 2023. It has not yet completed the process, issuing a draft EHC Plan on 30 August 2024: a delay of at least five months.
21. I understand that the delay is partly due to the national shortage of Educational Psychologists but the Council should have considered using the existing educational psychology report from August 2023 much sooner than it did and before Mrs B had to formally complain. This was fault which has contributed to the delay in completing the process. It has caused Mrs B distress and uncertainty as to whether C has missed out on any additional support.

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Agreed action

22. I welcome the Council’s acknowledgement of the delay, along with its apology and £300 to Mrs B. But given that the process is still not complete, I recommended the Council, within one month of the date of my final decision:
• issues the final EHC Plan without further delay;
• pays Mrs B an additional £200 (making a total of £500) to acknowledge the distress, frustration and uncertainty caused to her and C by the Council’s failure to issue the EHC Plan in line with the statutory timescales. This payment is calculated at roughly £100 per month from the date the Council should have issued the EHC Plan (3 April 2024) until the date it issued the draft plan (30 August 2024); and
• pays Mrs B an additional £100 for every further month of delay until the final EHC Plan is issued.
23. I also recommended that within one month of the final EHC Plan being issued the Council offers a remedy in line with our Guidance on Remedies for any provision C would have had sooner but for the delay.
24. The Council has agreed to the recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

25. I consider this is a proportionate way of putting right the injustice caused to Mrs B and C and 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