Summary: Ms X complained about the time the Council took to carry out an Education, Health and Care needs assessment and issue a final Education, Health and Care plan for her son, causing her and her son frustration and uncertainty. The Council has agreed to apologise to Ms X and make a payment for the frustration and uncertainly caused by the delay.

The complaint

1. Ms X complains the Council delayed in carrying out an Education, Health and Care needs assessment for her son and delayed issuing his final Education, Health and Care plan.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)

Back to top

How I considered this complaint

4. As part of this investigation I considered the information provided by Ms X and the Council. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council and considered comments received in response.
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

What I found

Law and guidance

6. 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.
7. 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);
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

What happened

8. Ms X asked the Council to carry out an EHC needs assessment for her son, Y, on 5 January 2023. The Council wrote to Ms X on 10 January 2023 and agreed to carry out the assessment.
9. Ms X contacted the Council in March 2023 as she had not heard anything further about Y’s EHC needs assessment.
10. In late March 2023, the Council assigned an Educational Psychologist to Y’s case to assess him. The Educational Psychologist gave their report to the Council in April 2023.
11. On 12 May 2023, Ms X made a complaint to the Council about the time it was taking to assess Y. The Council responded and told Ms X it had received the report from an Educational Psychologist and was organising an outcomes meeting to discuss Y’s case. The outcomes meeting took place in June 2023.
12. In late June 2023, Ms X contacted the Council as it had been seven months since she asked for an EHC needs assessment. Ms X said she still did not know if the Council would issue an EHC plan.
13. The Council responded to Ms X in July 2023. The Council said there had been delays carrying out Y’s EHC needs assessment and apologised. The Council said Y’s case was awaiting quality assurance and it would decide whether it would issue a draft EHC plan as part of the quality assurance.
14. On 22 August 2023, the Council told Ms X of its decision to issue a draft EHC plan for Y. The Council sent Ms X a draft EHC plan on 23 August 2023.
15. Ms X provided her comments to the Council on 14 September 2023, and the Council issued a final EHC plan on 2 November 2023.
16. In response to my enquiries the Council said the delays in carrying out an EHC needs assessment for Y was due to the shortage of Educational Psychologists the Council had access to. The Council said it was seeking to recruit more Educational Psychologists and working on developing virtual assessments. The Council also said it delayed deciding whether to issue an EHC plan for Y. The Council said this was due to an sharp increase in the number of EHC needs assessments requests it had received. The Council said it had invested funding in recruiting many more full time employees for its Special Educational Needs and Disabilities team.

Analysis

17. The Council was at fault for the time taken to complete an EHC needs assessment of Y. It did not complete the assessment in line with statutory timescales. The Council should have decided whether to issue Y with an EHC plan by late April 2023. It did not do this until late August 2023.
18. The Council should have issued Y with a final EHC plan by late May 2023. It did not issue the final EHC plan until early November 2023, a delay of six months. This caused frustration and uncertainty to Ms X and Y as they did not know when or if Y would receive an EHC plan. Ms X also had to chase the Council up several times as it had passed the statutory timescale for issuing an EHC plan.
19. The Council has recognised there was a delay. It explained this was due to a shortage of Educational Psychologists and delays in the decision making around whether to issue an EHC plan for Y. While the Council has acknowledged the delay, and this is welcomed, it has not offered Ms X a remedy for the injustice caused to her and Y.
20. Where delays to EHC needs assessments have occurred because of shortages of Educational Psychologists our guidance recommends a payment of £100 per month for each month of delay outside of the statutory timescale, until a final EHC plan is issued. In this case the final EHC plan was delayed by six months.
21. I also considered recommending a service improvement to the Council to address the delays caused by Educational Psychologist shortages and decision making on whether to issue EHC plans. However the Council has shown it has started to put in place an action plan to address this. It has told the Ombudsman of this in previous investigations. Therefore it is right to allow the Council time to put in place its action plan to address these issues.

Back to top

Agreed action

22. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Ms X for the delays in completing Y’s EHC needs assessment and issuing an EHC plan.
• Pay Ms X £600 to recognise the frustration and uncertainty she and Y suffered caused by the delays in completing the EHC needs assessment and issuing an EHC plan.
• Pay Ms X £100 for the time and trouble she experienced in chasing this matter with the Council.
23. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

24. I have completed my investigation and found the Council was at fault which caused injustice. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman