Summary: Ms X complained about the Council’s delay in completing an Education, Health and Care needs assessment for her child. We found there had been avoidable delay by the Council in completing the assessment which had caused Ms X injustice. To address the injustice, the Council agreed to send Ms X a written apology and make a symbolic payment of £1,200 in recognition of the avoidable distress caused by its delay.

The complaint

1. Ms X complained about the Council’s excessive delay in completing her child’s Education, Health and Care (EHC) needs assessment and issuing any necessary EHC Plan. The delay included the Council’s failure to secure an Educational Psychologist’s report for the assessment.
2. Ms X said her child attended a mainstream school. The school could not meet her child’s needs and her child had an unsuitable flexi timetable. Not attending school while awaiting the EHC needs assessment had significantly affected and delayed her child’s education. Ms X also said trying to teach her child at home, when she was not trained to do so, affected her health.
3. Ms X wanted the Council to assign an Educational Psychologist, complete the EHC needs assessment and issue an EHC Plan for her child.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. 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

8. I considered evidence provided by Ms X and discussed the complaint with her. I also considered information provided by the Council and relevant law, policy and guidance. I shared Council information with Ms X. I also gave Ms X and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Background

Special educational needs

9. A child with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. 
10. The Government’s statutory guidance, the ‘special educational needs and disability code of practice: 0 to 25 years’ (the Code), sets out the procedure for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs and Disability Regulations 2014 (the SEND Regulations). It says: 

• 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 within six weeks; 
• 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 assesses a child, it must decide either to issue or refuse to issue an EHC Plan within 16 weeks; and
• if the council issues an EHC Plan, the procedure from the request for an assessment until issue of the final EHC Plan must take no more than 20 weeks (unless certain specific circumstances apply).

11. When assessing a child, the council must gather advice from relevant professionals (see SEND Regulation 6(1)), including from:

• the child’s educational placement; 
• psychological advice and information from an Educational Psychologist (EP); and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

Those consulted have a maximum of six weeks to provide the advice. 

Alternative provision

12. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19).

What happened

13. Ms X’s child (in this statement called ‘C’) was attending a mainstream school (‘the School’). In autumn 2023, the School, with Ms X’s knowledge, asked the Council to assess whether C had special educational needs (SEN). The Council wrote to Ms X giving the six-week date by which it should decide whether to assess C. The Council also gave Ms X contact details for the special educational needs and disability information, advice and support service (SENDIASS).
14. Within the next six weeks, the Council wrote again to Ms X to tell her it would carry out an EHC needs assessment for C.
15. In autumn 2024, Ms X complained to the Council, referring to the time limits in the SEND Regulations for completing EHC needs assessments. Ms X said, after a year, the Council had yet to appoint an EP for C’s case. Ms X said the delay was having a detrimental impact on C’s education.
16. In reply, the Council recognised it was falling significantly short of legal timescales in carrying out EHC needs assessments, which could impact children and their families. The Council set out the matters affecting timely decision making and what it was doing to reduce delays. The difficulties it faced included a national shortage of EPs and an unprecedented increase in assessment requests. The Council said C would continue to receive support, including from the School. And, if it issued an EHC Plan for C, it would backdate any funding to the date the final Plan should have been in place. The Council referred Ms X to SENDIASS for advice and support. The Council also told Ms X that, if dissatisfied with its response, she could complain to the Ombudsman, which she did.
17. After Ms X complained to us, the Council appointed an EP to C’s case and later issued a final EHC Plan for C.

What the Council told us

18. The Council explained the difficulty in recruiting and keeping EPs and the number of EHC needs assessments it carried out. The Council also provided more information about how it was trying to reduce delays, which steps were leading to small service improvements. It had commissioned a company in summer 2024 to help with EP reports. More officers were also now supporting assessment work. With extra EPs and support officers it had focused on completing assessments for those waiting longest. When it issued an EHC Plan, it backdated funding to the legal 20-week decision date. The Council said it also had a dedicated email address for enquiries about progress with assessments.
19. It processed cases in chronological order using the date it had agreed to carry out an EHC needs assessment. And, here, the delay in completing C’s assessment arose from its inability to appoint an EP to the case for about a year. Once an EP was appointed, it made timely progress with C’s case.
20. The Council said the School had shown C’s attendance at over 90% when it received the EHC needs assessment request. And, it had been unaware C was on a flexi timetable until it received the EP’s report. (The Council explained that parents and carers may ask their child’s school for ‘flexi-attendance’. If agreed by the school, the child receives full time education provided partly by attendance at the school and partly at home.) Here, the Council understood the School had prepared a flexi timetable for C on the understanding Ms X could withdraw from the arrangement at any time. Not knowing of the flexi timetable, it could not have considered its duty under section 19 (see paragraph 12). It also had no knowledge of Ms X’s concerns about how the flexi timetable impacted her health. The Council said it considered C was receiving the educational provision set out in the EHC Plan. However, it had now offered alternative provision to support C’s education and allow Ms X to step away from the flexi-school arrangement.

Consideration

21. The Council made a timely decision to carry out an EHC needs assessment for C (see paragraphs 10 and 14 of this statement). However, there was no dispute the Council failed to meet the legal timescale for issuing C’s final EHC Plan. Rather than 20 weeks, it took around 71 weeks for the Council to issue C’s final EHC Plan after receiving the request for an assessment. The evidence also showed that appointing an EP to C’s case took over a year from the assessment request. So, the delay in appointing an EP accounted for most of the time taken to complete the assessment and issue C’s final EHC Plan. I found no evidence of avoidable delay by the Council in completing C’s assessment and issuing a final EHC Plan after it had appointed an EP to the case.
22. We are aware of the national EP shortage. If we are satisfied a council has put measures in place to mitigate the impact of that shortage on its services, we consider delay attributable to the lack of EP advice as service failure (see paragraphs 4 and 5).
23. In considering other complaints, we found fault with the Council’s EHC needs assessment and Plan procedures. And we agreed service improvements with the Council for its SEN services. For example, improvements to deal with both the increasing demand for EHC services and the national EP shortage. The Council also had a plan aimed at improving its SEN services. And we received regular performance reports from the Council about its SEN services. I was satisfied the Council was working to put in place previously agreed service improvements. And it was continuing to act to address the impact of EP shortages on its services (see paragraph 18). I therefore found no need now to recommend further service improvements. As the Council was working to improve its SEN services, including addressing EP delays, I found the delay in appointing an EP to C’s case was a service failure. And this caused the substantive and significant delay in issuing C’s final EHC Plan.
24. The Council’s delay in completing the EHC needs assessment and issuing C’s final EHC Plan would likely have caused Ms X avoidable distress and frustration. I therefore found the fault I identified at paragraph 23 caused Ms X significant personal injustice.
25. Ms X’s complaint to us also raised concerns about C’s flexi-timetable and how supporting C’s education at home impacted her health. The evidence showed the Council was not aware of C’s flexi school arrangements until it received the EP’s report. This was after Ms X brought her complaint to us. I could not find the Council at fault for not dealing with matters it was not aware of. However, the Council has now responded to the situation (see paragraph 20).

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Action

26. I found fault causing injustice (see paragraphs 23 and 24). To address the injustice in a proportionate, appropriate and reasonable manner, the Council agreed (within 20 working days of this statement) to:

• send Ms X a written apology (and consider our: Guidance on remedies - Local Government and Social Care Ombudsman about making effective apologies); and
• make a symbolic payment of £1,200 to Ms X,

in recognition of the avoidable distress caused by its delay in completing C’s EHC needs assessment and issuing the final EHC Plan.

27. The Council also agreed to send us evidence it had complied with the actions set out at paragraph 26.

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Decision

28. I found fault causing injustice. The Council agreed the actions set out at paragraph 26 to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman