Summary: The Council failed to carry out an Education, Health and Care Needs Assessment for Ms X’s child, Z, within the statutory timeframes. This was largely due to a shortage of Educational Psychologists. We are satisfied with the Council’s action plan to increase its access to Educational Psychologists. However to recognise the personal injustice caused to Ms X and Z by the Council’s fault, the Council has agreed in addition to pay Ms X £100 for each month of delay in concluding Z’s needs assessment.

The complaint

1. Ms X complained the Council delayed in carrying out an Education, Health and Care Needs Assessment (EHC Needs Assessment) for her child, Z.
2. Ms X said this has caused uncertainty and distress to Z and their family.

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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 an injustice, 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 provided by Ms X and the Council.
8. I considered recent service improvements carried out by this Council in relation to complaints about delayed EHC Needs Assessments.
9. I considered the relevant law and guidance as set out below.
10. I considered our Guidance on Remedies.
11. I considered all comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

Education Health and Care Plans

12. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.

Education, Health and Care Needs Assessments

13. To determine whether someone needs an EHC Plan, councils carry out EHC Needs Assessments.
14. 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:

• where a council receives a request for an EHC needs assessment it must decide within six weeks whether to agree to the assessment;
• a council should decide if it will issue an EHC Plan within 16 weeks of the request for an assessment; and
• the whole process from the point an assessment is requested until a final EHC Plan is issued must take no more than 20 weeks.

15. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes but is not limited to: 
• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an Educational Psychologist (EP). 
16. Those consulted have a maximum of six weeks to provide the advice. 
17. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right only arises once a decision not to assess, issue or amend a Plan has been made and sent to the parent or a final EHC Plan has been issued.

What happened

18. Ms X asked the Council to carry out an EHC Needs Assessment for her child, Z. The Council received this request on 31 March 2023.
19. Six weeks passed and Ms X still had not received the Council’s decision on whether to assess Z so she made a stage one complaint regarding the delay.
20. On 8 June the Council informed Ms X it had decided to carry out an EHC Needs Assessment for Z and sought advice from an Educational Psychologist.
21. The Council responded to Ms X’s complaint the following month and apologised for the delay in deciding whether to assess. It said this was due to Ms X’s caseworker being on leave.
22. The Council also apologised that it was now late in deciding whether Z required an EHC Plan, as it had not been able to access an Educational Psychologist to carry out an assessment within the statutory timeframe.
23. It explained this was due to the national shortage of Educational Psychologists and set out the steps it was taking to increase its supply of these professionals.
24. Ms X was unhappy with this response and the continued delay in progressing Z’s EHC Needs Assessment, so she asked the Council to escalate her complaint.
25. The Council responded at stage two of the complaints process in October. By this time Z still had not been seen by an Educational Psychologist. It apologised again for the delay and set out steps it had taken to improve its access to Educational Psychologists including:
• Contracting of associate and locum Educational Psychologists;
• Use of virtual assessments so it can use Educational Psychologists outside the local area; and
• Employing seven assistant Educational Psychologists and six trainee Educational Psychologists.
26. Regarding its waiting list, the Council said it had a plan to work through this in chronological order but with a focus on children in transition year groups (Nursery, Year 6 and Year 11) and those in care, or whose care placements were at risk.
27. Z was assessed by an Educational Psychologist in February 2024. The Council has not yet decided whether Z requires an EHC Plan.

My findings

28. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
29. The Council should have decided whether to assess Z by 12 May 2023. It decided almost four weeks later, on 8 June 2023. This delay was fault by the Council and caused Ms X frustration.
30. The Council should then have decided whether to issue an EHC Plan for Z by 21 July 2023. The Council still has not made this decision, due to the lack of Educational Psychologists available to assess Z.
31. The Council has not met these timescales due to the shortage of Educational Psychologists and the increased demand for EHC Needs Assessments.
32. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in progressing Z’s EHC Needs Assessment is fault (service failure). We cannot say what support, if any, Z may receive when the assessment is concluded. However the fault has caused frustration, distress and uncertainty to Z and Ms X and delayed her right of appeal.
33. I recognise the Council has made service improvements to respond to the increased demand for EHC needs assessments and to manage the shortage of Educational Psychologists. I am satisfied with these service improvements and so have not recommended anything further here. However I recommend the Council provide a remedy for the personal injustice caused to Z and Ms X.

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Agreed action

34. Within one month of the final decision, the Council has agreed to:
1. Confirm that it will pay Ms X £100, for every month (four weeks) after the statutory deadline of 21 July 2023, that it takes the Council to decide whether Z requires an EHC Plan; and
2. Confirm that if the Council then decides Z requires an EHC Plan, it will pay Ms X £100 for every month (four weeks) of further delay in issuing the final Plan.
35. The financial remedies above should be paid when the EHC needs assessment process has concluded, either when a final EHC Plan has been issued, or a decision that Z does not require an EHC Plan has been issued.
36. The Council has agreed to provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to a financial remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman