Summary: Mrs X complained the Council delayed completing her child, Child Y’s, Education Health and Care (EHC) needs assessment within the statutory timescale and delayed making a decision about whether to issue Child Y with an EHC plan. The Council was at fault for failing to decide whether to issue Child Y with an EHC plan within the statutory timescale, caused by a delay in obtaining Educational Psychologist advice. The Council will pay Mrs X £600 for the distress and uncertainty the delay has caused between early December 2022 and early June 2023. The Council will also remedy the continuing injustice from June 2023 until the date it issues Child Y’s final EHC plan.

The complaint

1. Mrs X complained the Council delayed issuing Child Y’s Education Health and Care (EHC) plan within the statutory timescale. Mrs X said this caused her uncertainty, additional costs and a delay in Child Y getting the correct support and provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

6. I considered:
• the information Mrs X provided and spoke to her about the complaint;
• the information the Council provided and its response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
7. Mrs X and the Council had an opportunity to comment on the draft decision. We considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

8. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
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 Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;

• the process of assessing a child’s needs and developing EHC plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

10. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so.
11. Those consulted have six weeks to provide the advice.
12. The council should consider, with the child’s parent and the parties listed, the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47).
13. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement. The appeal can be against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged 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. We cannot direct changes to the sections about the child’s special educational needs, special educational provision, or name a different school. Only the tribunal can do this.
14. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)

What happened

15. Child Y lives with their family and attends School 1. Child Y has a sensory processing disorder and an autism spectrum condition.
16. In mid-July 2022, Child Y’s mother, Mrs X asked the Council to carry out an Education Health and Care (EHC) needs assessment. School 1 supported the need for this assessment.
17. In late August 2022 the Council agreed to complete an EHC needs assessment for Child Y. Four days later the Council told Mrs X its decision and said it would let her know in writing by early November 2022 if it intended to issue Child Y with an Education Health and Care (EHC) plan or not.
18. In late August 2022 the Council sent letters to professionals including the education psychology (EP) service, health, advisory teaching service and School 1 asking for advice on Child Y’s EHC needs assessment.
19. In early November 2022 the Council told Mrs X no educational psychologist had been allocated for Child Y because the Council was unable to recruit enough EPs to meet demand.
20. In late November 2022 Mrs X made a formal complaint to the Council she said:
• it was over 14 weeks since she asked for the EHC needs assessment and she should have received the draft EHC plan; and
• she would not get Child Y’s final EHC Plan within the 20 week timeframe and Child Y would not receive the support needed.
21. In early December 2022 the Council responded to Mrs X’s formal complaint and said:
• it agreed to carry out Child Y’s EHC needs assessment within the statutory 6 week timescale;
• the Council asked for an assessment from the educational psychology service in late August 2022;
• a decision whether to issue an EHC plan to Child Y should have been made by early November 2022 and, if agreed, Child Y’s final EHC plan should have been issued by late November 2022. The Council sincerely apologised for not meeting these timescales;
• the Council discussed Mrs X’s concerns with ‘Gloucestershire’s Principal Educational Psychologist’ and they were aware of the importance of progressing assessments within statutory timescales;
• the Council and the educational psychology service were working together to increase information for parents waiting for EP assessments;
• the educational psychology service wanted to recruit more permanent members of staff to manage the growing number of EHC need assessment requests. This was challenging because of a national shortage of qualified EPs;
• the Council received support from locum EPs, to reduced delays and to secure a long-term solution;
• it would record EHC needs assessments failing to meet the statutory timescales and discuss the results at meetings with senior members of the Council and educational psychology service; and
• it did not know when Child Y’s EHC plan would be completed and apologised.
22. Mrs X was unhappy with the Council’s response and three days later asked the Council to escalate her complaint.
23. In mid-December 2022 the Council responded to Mrs X with a stage 2 response. It said it did not think arranging further investigation would bring the outcome Mrs X was seeking.
24. Mrs X remained unhappy and contacted us.

Enquiries

25. In response to my enquiries Mrs X said in late May 2023 the panel agreed to issue Child Y with an EHC plan. The draft EHC plan had not yet been issued.

My findings

26. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
27. The Council decided to carry out an EHC needs assessment for Child Y within six weeks. This was within the statutory timescale and was not fault.
28. In line with statutory timescales the Council should have decided whether to issue Child Y with an EHC plan by early November 2022. The EP report should have been available to the Council by early October 2022 in order for the Council to have met the early November deadline. The EP was not completed on time because the Council was unable to recruit enough EPs to meet demand. The educational psychology service has now completed its report for Child Y and the panel agreed to issue Child Y with an EHC plan, but the draft EHC plan has not yet been issued. This delay in deciding whether to issue Child Y with an EHC plan is fault and caused Mrs X distress and uncertainty. This in turn has had a knock-on effect which means at the start of June 2023 Child Y still did not have a finalised EHC plan. I have taken early December 2022 as the start date for the injustice Mrs X suffered as a result of the Council delay. The delay up to 1 June 2023 is 26 weeks.
29. While I accept there are justifiable reasons why the EHC plan needs assessment has taken longer than it should; the Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. I am pleased to see the Council is making efforts to resolve the lack of EPs.
30. The delays have had an impact on both Mrs X and Child Y. Had the Council carried out Child Y’s EHC needs assessment in line with statutory timescales then they would have had a final EHC plan in place by early December 2022. This may have given Child Y a better chance of coping in the school environment. The delays mean Child Y has lost that opportunity which has caused distress and uncertainty to both them and Mrs X.
31. The Council has agreed to take action to acknowledge this injustice up to the 1 June 2023 and provide a remedy for the continuing injustice from 1 June 2023 until the date it issues Child Y’s final EHC plan. I am satisfied the Council is actively recruiting EPs in its area to address the shortage, so I have not made any further service improvement recommendations.
32. Once the Council has issued a final EHC plan for Child Y, Mrs X will have a right of appeal to the Tribunal if she disagrees with the special educational needs, provision or placement specified in the EHC plan. As a result, I have not recommended a payment for any potential loss or delay in special educational provision to Child Y because the EP assessment and support set out in the final EHC plan should identify the special educational support Child Y now needs. If she feels it does not, then she has a right to appeal to the tribunal.

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Agreed action

33. Within one month of the final decision the Council will pay Mrs X £600 to acknowledge the distress, frustration and uncertainty caused to her and Child Y by the Council’s failure to issue the final EHC plan in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan in December 2022 until the 1 June 2023.
34. When the Council issues Child Y’s final EHC plan it will provide Mrs X with a further financial remedy. This is to acknowledge the continued injustice caused by the delay in issuing Child Y’s final EHC plan from 1 June 2023 up to the date of the final EHC plan. The Council will calculate the payment at £100 per month in line with the agreed action above. The Council will make this payment to Mrs X within one month of the date of the final EHC plan. The Council will provide us with updates every two months until it issues Child Y with a final EHC plan. Mrs X should use it for Child Y’s benefit as she sees fit.

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Final decision

35. I have completed my investigation finding fault and injustice. The Council has agreed to take action to remedy the injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman