Summary: Ms Y complained about the time the Council took to assess her child and issue an Education, Health and Care plan. She also complained about the Council’s communication with her during the process. We found the Council at fault. It has agreed to make a recognition payment to Ms Y and to her child for the resulting injustice.

The complaint

1. Ms Y complains the Council has not complied with statutory timelines in producing an Education, Health and Care (EHC) plan for her child, X. She says her child missed out on the provision they needed for a term as a result of the delay. She is seeking compensation for her child and service improvements as she has been through the same process before and feels the delays are systematic. Ms Y also complained about the Council’s communication with her during the process.

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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. 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

6. I considered evidence provided by Ms Y and the Council as well as relevant law, policy and guidance.
7. Ms Y and the Council have had an opportunity to comment on a draft decision before I made this final decision.

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What I found

Law and guidance

8. 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.
9. 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 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 must take no more than 20 weeks (unless certain specific circumstances apply) 

What happened

10. Ms Y contacted the Council to request an Education, Health and Care needs assessment for her child, X, in July 2023.
11. The Council agreed to the assessment within the six weeks allowed by the statutory process.
12. The Council explained to Ms Y, that there is a national shortage of educational psychologists, and it has created a two stage process for issuing educational psychologists reports to help with this. The Council has a team of associate educational psychologists, who exclusively carry out EHC needs assessments. The advice given is then quality checked by the Educational Psychology Service.
13. The EHC needs assessment was completed in January 2024, but the quality checks were not complete for another 10 weeks.
14. The statutory timeframe means the EHC plan should have been issued in December 2023, 20 weeks from the application. However, the final EHC plan was not issued until May 2024, 43 weeks and 4 days after Ms Y applied.
15. Ms Y complained the Council’s process is flawed as the quality checks are taking 10 weeks in what should be a 20 week process from start to finish, which inevitably causes delays.
16. The Council responded to explain the system it has implemented is an attempt to proactively deal with the current national shortage of Educational Psychologists. It apologised and acknowledged that despite this action it has not been able to meet the statutory timeframes.
17. Ms Y also complained about the accuracy and consistency of the Council’s communication with her. The Council accepted that she had not always been responded to. It confirmed that meetings would be arranged with relevant staff to emphasise the need to keep families updated and informed of delays in this process and to respond to all contact.

Analysis and findings

18. We accept there is a national shortage of Educational Psychologists. I also acknowledge the Council has taken steps to try to limit the impact of this. However, the law says the Council must adhere to statutory timescales. Its failure to do so is therefore a service failure.
19. X’s EHC plan was issued 23 weeks and 4 days later than it should have been. X has therefore had the injustice of the provision within the EHC plan being delayed for this period.
20. The delay has also impacted Ms Y as she has had to chase the Council for a prolonged period. This is further exacerbated as the Council acknowledge its communication with her was not always as it should have been.
21. The Council has explained the steps it has taken to address the delays in its EHC plan process as well as to its communication with parents. I have not therefore recommended that any further service improvements are required at this time. We will monitor how effective the Council’s improvements are through our casework.
22. The Council had already acknowledged and apologised for the faults identified. I recommended it also provide a personal remedy for Ms Y and for X in recognition of the injustice caused to them.

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Agreed Action

23. Within one month of the decision, the Council will:
• make a payment of £600 to Ms Y, for X, in recognition of the impact of missing out on the provision needed;
• make a payment of £200 to Ms Y for avoidable distress and uncertainty.
24. The total payment to be made is therefore £800.
25. The Council should provide us with evidence it has complied with the above actions.

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Decision

26. I find fault causing injustice and the Council has agreed to provide a personal remedy in recognition of this.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman