Summary: Miss X complained the Council delayed assessing her child’s needs and issuing their education, health and care plan. Miss X said this caused unnecessary and avoidable distress, anxiety and frustration. We find service failure and fault causing injustice. The Council will make a payment to remedy the injustice.

The complaint

1. Miss X complained the Council delayed assessing her child’s needs and delayed issuing an education, health and care plan for her child. She said no one has taken ownership of her child’s case.
2. Miss X said this caused unnecessary and avoidable distress, anxiety and frustration. She said it has affected her mental health.

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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)
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 considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
8. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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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.
• 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

11. In January 2024, Miss X asked for an education, health and care (EHC) assessment for her child, B.
12. In August, the Council told Miss X it would issue an EHC plan for B.
13. In September, Miss X complained.
14. The Council said the delays in the EHC process were because of shortages in educational psychologists and staffing problems. It explained it was implementing a recovery plan and was recruiting more staff. The Council apologised for the impact of the delays.
15. The Council issued the final EHC plan in October.

Analysis

Education, health and care plan

16. Miss X complained the Council delayed assessing her child’s needs and delayed issuing their education, health and care (EHC) plan.
17. Miss X asked for an EHC assessment in January 2024. The Council should have issued the EHC plan in May. It actually issued the plan in October.
18. The Ombudsman recognises there is a national shortage of educational psychologists, and this is causing delays nationwide. This delay is therefore service failure.
19. This caused injustice because it caused distress, frustration and uncertainty.
20. I am satisfied the Council has apologised for the injustice.
21. The Council told the Ombudsman about its recovery action plan. It has recruited more educational psychologists and more staff. The Council has shown that its plan is working because backlogs and delays have been reduced. This is positive.
22. Due to the proactive actions the Council has taken to address its issues, I do not consider it is appropriate or proportionate to propose any service improvements.

Communication

23. Miss X complained no one has taken ownership of her child’s case. She said she frequently chased the Council.
24. The Council accepts it communicated poorly with Miss X. This is fault. I find this fault caused Miss X injustice because it caused uncertainty and unnecessary distress.

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Action

25. In its response to Ombudsman enquiries, the Council recognised the injustice caused by the service failure and fault in this case. It proposed to make a payment to Miss X of £700 to remedy the injustice. This was made up as follows:
• £400 to remedy the distress, frustration and uncertainty caused by delays in the EHC process; and,
• £300 to remedy the distress caused by its poor communication.
26. I have consideration our guidance on remedies. I find the Council’s suggested financial remedy is appropriate and proportionate to the level of injustice caused here.
27. Within four weeks of this decision, the Council will make its suggested payment of £700 to Miss X.
28. The Council should provide us with evidence it has complied with the above action.

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Decision

29. I find service failure and fault causing injustice. The Council will take the action it proposed to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman