Summary: Ms X complained the Council did not adhere to statutory timeframes when assessing her child’s education, health and care needs and the way the Council processed the needs request was discriminatory. We do not find the process discriminatory. There was fault in the way the Council delayed completing the assessment of needs. The Council has agreed to make a payment to Ms X to remedy the injustice caused by the delay.

The complaint

1. Miss X complains the Council took too long to make a decision on an Education, Health and Care (EHC) needs assessment for her child, Y. She says the Council delayed in completing an educational psychology assessment.
2. Miss X also complains the process the Council has adopted for the EHC needs assessments is discriminatory. She says her child has not been treated the same as new children requesting EHC Plans.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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).

Back to top

How I considered this complaint

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Relevant 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. 
• 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 Tribunal.
• 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.

10. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

11. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  
12. Those consulted have a maximum of six weeks to provide the advice. 
13. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
14. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
15. The ‘protected characteristics’ referred to in the Act are:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.

Back to top

What happened

16. Ms X requested an assessment of her child, Y’s, education, health and care (EHC) needs on 6 October 2023.
17. On 17 January 2024 the Council agreed to assess Y’s needs. Mrs X provided an independent EP report to the Council but it was unable to use this because it did not meet the expected standards. The Council sent requests for information from professionals, including the Council’s EP service, on 22 January 2024.
18. The report from the EP was received on 25 September 2024. It was considered by the Council’s Panel on 16 October 2024. The Panel decided not to issue Y with an EHC Plan. Ms X was notified of this decision on 21 October 2024 and she was provided with her appeal rights.
19. I understand Ms X used her right of appeal to the SEND Tribunal and this appeal is ongoing.
20. Ms X complained to the Council about the delays. The Council acknowledged it had failed to adhere to the statutory timeframes and explained this was due to a rising demand in EHC needs assessments and a shortage of EPs. The Council apologised for the delays.
21. Ms X escalated her complaint because she felt her needs assessment request was being unfairly delayed. She had been told at a viewing of a school that children who had recently requested a needs assessment were being assessed quicker.
22. The Council explained it had adopted a new initiative where the cohort that is awaiting assessments is divided into two workstreams, each with their own dedicated teams. One team is addressing the backlog of applications that surpass statutory timeframes whilst the other team attends to the new applications received.
23. Ms X is of the view this process is discriminatory and brought her complaint to the Ombudsman.

Back to top

Analysis

24. The Council should have notified Ms X of its decision not to issue an EHC Plan within 16 weeks of the date of the request. The Council’s decision was delayed nearly ten months. This considerable delay is fault and it has caused Ms X frustration. It was also a prolonged period of uncertainty.
25. The delay was due to the delay in obtaining advice from an EP. The Council has told us it has taken steps to resolve the issues caused by the national shortage of educational psychologists and to reduce the waiting times for EHC Plans. It has an action plan in place which includes reviewing ongoing recruitment and structure of its educational psychology service. I welcome the steps the Council has taken and therefore do not recommend any service improvements.
26. A suitable remedy for the delay would be for the Council to pay Ms X £100 per month of delay. That is a delay of 10 months and I therefore recommend a payment of £1000.
27. Mrs X is of the view the way the Council processes applications and assessments for EHC Plans is discriminatory. The Council has been transparent about the backlog and the challenges it is facing regarding the shortage of EPs and the increase in demand for EHC needs assessments. The Council has taken action to address those challenges.
28. The Council has developed the process of putting applications into cohorts to enable it to get through the backlog of EHC Plan assessments whilst not adding to it. The Council has developed the process to reduce the backlog and delays in the long run. I appreciate that because the two teams are processing requests concurrently, it may result in some requests being processed quicker than others but I do not consider this is discriminatory. Any parent who is affected by statutory timeframes not being met can use the Council’s complaints process and the Ombudsman’s service to remedy any injustice caused by delays.

Back to top

Agreed Action

29. To remedy the injustice caused by the faults identified above, the Council has agreed that within four weeks of this final decision, it will pay Ms X a symbolic payment of £1000 to acknowledge the impact caused by the significant delay in issuing a decision on Y’s needs assessment.
30. The Council will provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman