Summary: Mrs X complains the Council has failed to complete an Education Health and Care Needs Assessment within the statutory time frame. She says this has impacted her child’s education and mental health and caused avoidable distress to her wider family. We find the Council at fault which caused injustice. The Council has agreed to make a payment to Mrs X.

The complaint

1. Mrs X complains the Council has failed to complete an Education Health and Care Needs Assessment within the statutory time frame.
2. Mrs X says has impacted her child’s education and mental health. Mrs X also says it has caused avoidable and unnecessary distress to the wider family.

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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. 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

6. I considered the information and documents provided by Mrs X and the Council. Mrs X and the Council had an opportunity to comment on a draft of this decision. I considered all comments received before making this final decision.
7. I also considered the relevant statutory guidance as set out below.
8. 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

What should have happened

9. 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.
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. 
• 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.
• As part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist (EP) and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice.
• 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.

What happened

11. In January 2024 the Council received a request for an EHC needs assessment for Mrs X’s child, B.
12. In February, the Council declined the request for an EHC needs assessment.
13. In early April, the Council received another request with additional information. The Council accepted the request for an EHC needs assessment.
14. To date, the Council has not requested advice from an EP.
15. B remains on the waiting list for an EHC needs assessment.

Analysis

16. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The timescale says the Council should provide the decision whether to complete an EHC needs assessment to the parent within six weeks of the request. The first request for an assessment for B was made in January 2024 and the Council made its decision not to assess in February 2024. This took under six weeks and was in line with the timescale and so is not fault. The second request was made in early April 2024 and the Council agreed to assess within two weeks. This was in line with the timescale and so was not fault.
17. Councils must decide whether to issue an EHC Plan within 16 weeks of the request. In this case, its decision was due in July 2024. It is yet to make its decision. This is fault which has caused Mrs X and B frustration and uncertainty.
18. Councils must seek EP advice as part of an EHC assessment. It says it has not yet requested the advice because there is no EP availability. It told Mrs X the national shortage of EPs and an increase in demand in assessments led to the delay. It said it was seeking other ways to increase EP availability. It told the Ombudsman it would not seek EP advice until B had been allocated with an EP.
19. 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 accept the reason for its delay making its decision whether to issue an EHC Plan is 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 Mrs X and B uncertainty and frustration.
20. The Council has recently completed an action plan to reduce delays in obtaining Educational Psychologist advice. Therefore, I am not making service improvement recommendations in this case.

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Action

21. The Council has suggested the following remedy, which I am satisfied is suitable. Therefore, within four weeks of my final decision the Council will make a payment to Mrs X of £900 to recognise the avoidable uncertainty and frustration caused by delay in obtaining Educational Psychology advice (this is calculated from July 2024 up until March 2025) and equates to £100 per month of delay. The Council is to pay an additional £100 per month after this date for each month of delay thereafter until it reaches a decision to issue an EHC Plan or not.
22. The Council should provide us with evidence it has complied with the above actions.

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Decision

23. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman