Summary: Mrs X complained about the Council’s delay in completing an Education, Health and Care needs assessment, which had adversely affected her child’s education. We found avoidable delay by the Council in carrying out the assessment. The Council agreed to send Mrs X a written apology and make a symbolic payment in recognition of the avoidable distress caused by its delay.

The complaint

1. Mrs X complained about the Council’s excessive delay in completing her child’s (in this statement called ‘C’) 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 (EP) report for the assessment.
2. Mrs X said, without an EHC Plan, C had a place at a mainstream secondary school, which was not a suitable placement. This was causing much anxiety and distress for her and C. Mrs X was also funding therapy for C, which therapy would be in the EHC Plan once issued, and this was causing financial strain.
3. Mrs X wanted the Council to assign an EP, complete the assessment and issue an EHC Plan for C.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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)
9. 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

10. I considered evidence provided by Mrs X and the Council. I also considered relevant law, policy and guidance. This included the Special Educational Needs and Disability Regulations 2014 (the SEND Regulations). It also included the Government’s statutory guidance, the ‘special educational needs and disability code of practice: 0 to 25 years’ (the Code). I shared Council information with Mrs X. I also gave Mrs X and the Council an opportunity to comment on my draft decision statements and considered any comments received before making a final decision.

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What I found

Background

Special educational needs

11. A child with special educational needs (SEN) may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. 
12. The Code sets out the procedure for carrying out EHC needs assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and 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 asking for an assessment until issue of the final EHC Plan must take no more than 20 weeks (unless certain specific circumstances apply).

13. When assessing a child, the council must gather advice from relevant professionals (see regulation 6(1) of the SEND Regulations), including from:

• the child’s educational placement; 
• psychological advice and information from an 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. 

14. Parents have a legal right to appeal many council SEN decisions. For example, parents may appeal a decision not to carry out an EHC needs assessment and a decision not to issue an EHC Plan after an assessment. The First-tier Tribunal (Special Educational Needs and Disability) considers such appeals. We refer to it as the Tribunal in this decision statement.

Alternative provision

15. 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).

The EHC needs assessment

16. The Council agreed to carry out an EHC needs assessment for C after Mrs X appealed to the Tribunal against its refusal to do so. Shortly before agreeing to assess C, the Council had received medical evidence about C. The Council said it told Mrs X of the difficulties in securing the EP report needed for an assessment.
17. A few months later, a new academic year started, which year marked C’s final year of primary education. And, after waiting about eight months for progress with C’s assessment, Mrs X complained to the Council. Mrs X said the Council had significantly exceeded the legal timescales for completing C’s assessment and issuing any EHC Plan. Mrs X pointed out that C would be moving to secondary education in the next academic year but would be unable to attend a mainstream school.
18. In reply, the Council recognised it was falling significantly short of legal timescales in carrying out 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 people seeking an assessment. The Council said C would continue to receive support. 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 gave Mrs X information about how to get advice and support on SEN matters. The Council also told Mrs X that, if dissatisfied with its response, she could complain to the Ombudsman, which she did.
19. In complaining to us, Mrs X said, without an EHC Plan, C now had a place at a mainstream secondary school. Such a placement was not suitable for C. Mrs X also said C’s EHC Plan should include the therapy she was funding.

What the Council told us

The EHC needs assessment

20. The Council said requests for EHC needs assessments were still increasing, as were the number of assessments it agreed to carry out. Like many councils, it also continued to face difficulties recruiting and keeping EPs. There remained too few EPs to keep pace with the rising demand for assessments. The time taken to appoint an EP to each case caused delay in completing assessments. It had tried to reduce delays by changing its procedures, which had led to small service improvements. And it had commissioned a company in summer 2024 to help with EP reports. Once it appointed an EP, it could meet the legal timescales in further processing cases. More officers were also now supporting assessment work. With extra EPs and support officers, it had focused on completing assessments for those waiting longest.
21. It normally processed cases in chronological order using the date it had agreed to carry out an EHC needs assessment. However, it had used its discretion in C’s case having considered C’s existing educational support and whether C could return to school. The delay in completing C’s assessment arose from its inability to appoint an EP for about a year. Since Mrs X complained to the Ombudsman, it had received the EP’s and other reports for C’s case and next needed to decide whether to issue an EHC Plan. The Council said, based on the information it held, if it decided to issue an EHC Plan, that Plan would not include any therapy support.
22. The Council recognised the time taken to handle C’s case affected Mrs X’s ability to ask that a particular school be named in any EHC Plan it issued. The delay would likely mean there was insufficient time to consult schools and secure a suitable placement before C moved to secondary education.

Educational provision

23. The Council said C’s primary school (the School) had contacted it about C’s non-attendance about four months after that attendance had stopped. (Mrs X disputed this.) At first, the Council understood and dealt with C’s absence as a non-compliance with attendance issue. However, having communicated with the School and Mrs X, it had received medical evidence about C being unable to access alternative educational provision (see paragraph 15). Given the medical evidence, the Council said it did not make alternative provision. Over the following five months, it kept in touch with the School, Mrs X and C. And, on receiving updated medical evidence, it arranged an educational provider to support C. At first, the support was homebased. While challenges remained, there had been progress and C now attended the provider’s site. The Council said C was receiving suitable educational provision.

Consideration

24. There was no dispute the Council failed to meet legal timescales in carrying out C’s EHC needs assessment. After agreeing to assess C, it took the Council about a year to appoint an EP. The evidence showed the Council received the EP’s report within the six-week timescale and shortly after I made my enquiries of the Council about the complaint Mrs X had brought to us.
25. The Council had said it could meet timescales once it received an EP report. And it later completed the assessment procedure during my investigation. The Council issued the final EHC Plan almost 72 weeks after it had agreed to assess C’s needs. Events following receipt of the EP’s report were new matters that took place after I made my enquiries of the Council. In sharing information with Mrs X and the Council, it became clear they held differing views about why it took almost 12 weeks to complete the assessment procedure after the Council received the EP’s report.
26. The law says we must be satisfied a complainant has given the council a reasonable opportunity to respond to a complaint before we may investigate. As new and disputed matters, Mrs X, obviously, had not yet been able to complain about what happened after receipt of the EP’s report. The Council therefore had not had an opportunity to address any complaint from Mrs X about such matters. And this decision statement does not address the new and disputed matters that arose after receipt of the EP’s report.
27. The evidence showed that appointing an EP to C’s case accounted for most of the time taken to process C’s case. 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).
28. In considering other complaints, we found fault with the Council’s EHC needs assessment and Plan procedures. And we had 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. 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 20). I therefore found no need now to recommend further service improvements. And, 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.
29. The fault I identified at paragraph 28 caused substantive and significant avoidable delay for C’s assessment. It also likely caused Mrs X avoidable distress and frustration. The Council’s fault would also delay and so deny Mrs X the Tribunal appeal rights that arise on issue of a final EHC Plan. These include the right to appeal a school placement named in the final EHC Plan. Without an EHC Plan, C had been offered a place at a mainstream secondary school. Mrs X considered a mainstream school would not meet C’s needs and so the Council’s delay meant C lost the opportunity to attend a suitable school. The Council also recognised its delay affected timely consultation about C’s secondary school placement (see paragraph 22). The transition from primary to secondary education is an important and key stage in a child’s education. I therefore found the Council’s fault caused significant personal injustice.
30. Mrs X’s complaint to us also referred to C’s non-attendance at the School. The fact a child cannot attend school does not necessarily provide evidence of council fault. Here, at first, the Council did not know C was not attending the School and so could not respond to that non-attendance (see paragraph 22). Mrs X disputed this. However, I found the balance of the evidence showed the Council had not known about C’s non-attendance at the outset. Once aware, C’s case was first approached as a case of non-compliance with attendance. And then investigation led to the Council receiving medical evidence that said C could not access educational provision. Having considered that evidence, the Council was entitled to accept it. The evidence showed the Council continued to keep in touch with the School, Mrs X and C. And, on later receiving updated medical advice, the Council acted quickly to put in place alternative educational provision that it was satisfied was suitable for C’s needs. Overall, I found no fault here by the Council.
31. In her complaint to us, Mrs X also referred to therapy she had been funding since C stopped attending the School. The Council told us any EHC Plan it issued for C would not likely include provision for therapy (see paragraph 21). Mrs X challenged this and said the Council had recently changed its position. Mrs X told us the Council recently agreed to possibly consider the therapist’s report she had commissioned around the time C stopped attending the School. The comments now made by Mrs X’s and the Council were therefore inconsistent. And, that inconsistency arose after Mrs X complained to us. It was therefore a new matter and one the Council had not had an opportunity to respond to when it had dealt with Mrs X’s complaint.
32. If any educational therapeutic support considered necessary by Mrs X was not included in C’s final EHC Plan, she would likely have Tribunal appeal rights against its omission. We normally expect parents to use their Tribunal appeal rights (see paragraph 6). Here, I saw no good reason or grounds why Mrs X should not reasonably be expected to use her appeal rights if necessary. The Tribunal also has powers to consider and/or award costs (see The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10).
33. The evidence also showed Mrs X commissioned the therapist’s report and arranged for C’s therapeutic support before the Council knew C had stopped attending the School and had agreed to carry out an EHC needs assessment. The evidence did not suggest Mrs X’s actions and resulting costs were caused by any fault by the Council. In the circumstances, I therefore did not recommend the Council now ought to pay the costs incurred by Mrs X.

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Action

34. I found fault causing injustice. I considered our guidance on remedies. The Council had issued a final EHC Plan for C and so there was no need to recommend actions to complete C’s assessment. The final EHC Plan also gave Mrs X a right to appeal to the Tribunal about the educational provision it contained and the school placement named for C. I therefore considered any remaining significant injustice arising from the delayed appointment of an EP for C’s assessment. And, to address that injustice in a proportionate, appropriate and reasonable manner, the Council agreed (within 20 working days of this statement) to:

• send a written apology (having considered our guidance on remedies about effective apologies); and
• make a symbolic payment of £1,200,

to Mrs X in recognition of the avoidable distress caused by its service failure related to the national EP shortage.

35. The Council agreed to send us evidence it had complied with the actions set out at paragraph 34.

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Decision

36. I found fault causing injustice. The Council agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman