Summary: Mrs X complained the Council delayed completing an assessment for an Education, Health and Care (EHC) Plan for her child, Y. The Council was at fault. It did not complete an assessment or decide whether to issue an EHC Plan in line with statutory timescales. This caused Mrs X frustration and uncertainty. The Council has already apologised to Mrs X which was appropriate. The Council has agreed to make a symbolic payment to Mrs X to recognise the injustice caused. It will also provide us with an action plan in response to managing delays with EHC needs assessments.

The complaint

1. Mrs X complained the Council delayed completing an assessment for an Education, Health and Care (EHC) Plan for her child, Y. It caused Mrs X frustration and uncertainty as she was concerned due to the delay, the Council would not find Y an appropriate school to attend. She wants the Council to decide whether it will issue Y an EHC Plan.

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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)
5. 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.
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 spoke with Mrs X and considered the information she provided.
8. I considered the information the Council provided.
9. I considered our ‘Guidance on Remedies’.
10. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making this final decision.

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What I found

Education, Health and Care (EHC) Plans

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.

Timescales and process for EHC needs assessment

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 needs 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.
• 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).
• 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 SEND Tribunal.

Advice and information for EHC needs assessments

13. As part of the EHC needs assessment, councils must gather advice from relevant professionals. This includes advice and information from educational psychologists and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice.

What happened

14. Mrs X’s child, Y, has a combined neurodevelopmental condition. Y currently attends a primary school and is in their last year. Y is due to start a high school in 2025.
15. In December 2023, Y’s primary school asked the Council to carry out an EHC needs assessment with Y.
16. Towards the end of January 2024, the Council contacted Mrs X and agreed to carry out an EHC needs assessment with Y. It said it would need to gather advice from professionals involved with Y’s education and health. It would also need to get advice from an educational psychologist. The Council added, once it had all the relevant advice, it would then decide whether it would issue Y with an EHC Plan.
17. Between June and July 2024, Mrs X complained to the Council as it had still not completed the assessment. Mrs X said she was concerned the delayed assessment would cause delay in finding Y a placement at an appropriate high school later.
18. The Council responded to Mrs X and apologised to her for the delay with completing the assessment. It said there was a national shortage of educational psychologists and although it had measures in place to recruit educational psychologists, it did not have enough capacity to meet the demand for assessment requests.
19. The Council continued and said it was still waiting for an educational psychologist to complete the assessment. The Council said it had prioritised Y’s case as it was aware they would be changing schools in 2025 however, it could not inform Mrs X of when the assessment would be completed.
20. Mrs X remained unhappy and complained to us.
21. In October 2024, the Council told Mrs X it was in the process of securing an educational psychologist and as soon as it had secured one, it expected the assessment to take place within eight weeks.
22. Mrs X told us in early-December 2024, an educational psychologist had completed the assessment with Y. Mrs X was now waiting for the Council’s decision as to whether it would issue Y with an EHC Plan.

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Findings

23. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
24. The school requested an assessment of Y in December 2023 and towards the end of January 2024, the Council agreed to carry out an EHC needs assessment with Y. The Council should have completed the assessment and decided whether it would issue an EHC Plan within 16 weeks of the date the school first requested the assessment, so around early-April 2024. It did not adhere to the statutory timescales as detailed in paragraph 12. The Council was at fault.
25. The Council completed the assessment at the beginning of December 2024 but has yet to decide whether it will issue Y with an EHC Plan. Therefore, there is continuous delay and fault.
26. There is a national shortage of educational psychologists. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. Y’s wait to be seen by an educational psychologist delayed their needs assessment by eight months longer than the statutory timescales allow. This was fault which caused Mrs X frustration and uncertainty and delayed her right of appeal. The Council has already apologised to Mrs X however, it has agreed to our recommendations of a further remedy for the injustice caused.

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Agreed action

27. Within one month of the final decision, the Council has agreed it will:
• make Mrs X a symbolic payment of £800 to recognise the frustration and uncertainty it caused by the delay in completing Y’s EHC needs assessment. This is calculated from April 2024 to early-December 2024 which is approximately eight months and equates to £100 per month for the delay; and
• decide on whether to issue Y with an EHC Plan.
28. Within three months of the final decision, the Council will provide us with an action plan setting out the efforts it is making to reduce delays in the EHC Plan process including delays in obtaining educational psychologist advice.
29. The Council will provide us with evidence it has complied with the above actions.

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Final decision

30. I have now completed my investigation. The Council was at fault. It has agreed to the recommendations to remedy the injustice caused to Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman