Summary: Mrs X complained the Council refused to assess her daughter for an Education Health and Care Plan (“EHCP”) and then delayed completing the assessment, causing distress. We have not investigated the refusal to assess as Mrs X could have appealed. We found the Council at fault for delay. We recommended it pays Mrs X £500 for distress and uncertainty, issues a final EHCP, considers a remedy for any missed provision and acts to prevent recurrence.

The complaint

1. Mrs X complains the Council initially refused to assess her daughter Y for an Education Health and Care Plan (“EHCP”) and then delayed completing the assessment. Mrs X says they have suffered distress and uncertainty and she has been put to time and trouble chasing the Council.

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What I have and have not investigated

2. I have not investigated the Council’s refusal to assess Y for an EHCP because Mrs X had a right to appeal this decision and it was reasonable for her to use this right.
3. I acknowledge Mrs X considered the pros and cons of appealing and ultimately chose not to. However, Parliament provided that as the means to challenge a council’s refusal to assess and it is not for the Ombudsman to step in where people choose not to use that means.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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.
7. 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)

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How I considered this complaint

8. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
9. I gave Mrs X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHCP process

10. Once a parent asks the council for an EHCP assessment the council has six weeks to say whether it will carry out an assessment.
11. If the council refuses, the parent has a right to appeal.
12. If the council decides to assess it will gather information and then decide if the child needs an EHCP.
13. Where a council requests information as part of the assessment process, those supplying the information must respond in a timely manner and within a maximum of 6 weeks from the date of the request.
14. If the council decides the child needs an EHCP it must send a draft to the child’s parent and give them at least 15 days to comment and express a preference for a school.
15. The council must consult with any relevant school before naming it in the EHCP.
16. The council should amend the draft plan and issue the final EHCP as quickly as possible. In any event the whole process from the request to assess to the final EHCP should not take longer than 20 weeks.
17. The council must also tell the parent of their right to appeal to the SEND Tribunal and the time limit for doing so.

Ombudsman Guidance on Remedies

18. The Ombudsman publishes guidance for staff on assessing remedies where we find fault causing injustice. This is published on our website for transparency and we encourage councils to make use of it when deciding on remedies during their complaints process.

What happened

19. The Council says Y’s school requested an EHCP assessment on 18 May 2022.
20. The Council initially refused. It says it reached this decision on 16 June.
21. When I spoke to Mrs X she said the Council told her she could appeal or go to mediation. She researched her options and took into account the appeals process would take a long time. She therefore decided to seek mediation in the first instance. She says she incurred costs in doing so, including on professional reports.
22. On 6 September the Council decided to assess Y for an EHCP.
23. In November Mrs X complained to the Council it had not met the statutory deadline to complete the assessment. Y was in year 6 and this was delaying the identification of a suitable secondary school for next year (September 2023).
24. In December the Council responded. It said:
• It was experiencing delays in its Education Psychologist (“EP”) service. It had taken several actions to address this including:
1. Prioritising statutory assessment work over other work,
2. Advertising both locally and nationally to fill positions,
3. Extending the use of locum and associate EPs and
4. Commissioning an external provider to support it with this work.
• Unfortunately, this situation had added additional time to the EHCP process.
• It apologised for the delay.
25. Mrs X escalated her complaint to stage 2.
26. The Council provided its final response on 20 January 2023. In summary:
• It accepted it should have issued an EHCP by 12 October 2022 to meet the 20 week timescale.
• It asks an Education Psychologist to conduct a psychological assessment as part of the process. Ombudsman guidance says:

"the overarching responsibility means that when a body … exceeds the six-week time frame, and there is doubt that the body will send the information in the immediate future, the SEN department should commission its own assessment from a private provider"

• However, due to the national shortage of Education Psychology professionals and difficulty recruiting qualified staff this has not been a viable option for the Council.
• It could not comment on her request for a specific Educational Psychologist as this was an operational decision.
• It upheld the complaint and recommended: £200 for time and trouble; a timescale of when to expect the Council’s decision on whether to issue an EHCP and; an explanation why it could not use the EP she found.
• It asked Mrs X to let the Council know if she would accept the payment offered.
• It also referred her to the Ombudsman if she remained unhappy.
3. Mrs X then contacted the Ombudsman.
4. I asked the Council for a chronology of its contacts/actions to arrange an Educational Psychologist assessment and reasons for any delay. The Council said:
• It requested EP advice on 13 October 2022 and Y had been on the EP service waiting list since.
• In January 2023 it considered Mrs X’s request to consider a private EP she had found with availability.
• In February it confirmed to Mrs X it would use this EP and it received the EP report on 21 March.
• As of 20 April 2023 it is currently preparing a draft EHCP.
5. In comments on a draft decision the Council:
• Explained Customer Relations Managers currently access the Guidance on Remedies and then suggest an appropriate remedy to the responding manager, though they do not name an actual figure.
• Provided an update on how it was addressing the EP shortage. This included circumstances where it would accept private advice obtained by parents and then reimburse them for the cost incurred.

Findings

30. The Council should have issued a final EHCP by 5 October 2022 to meet the 20 week statutory timescale but it had still not issued this as of 20 April 2023. This is fault.
31. Mrs X and Y have suffered distress and uncertainty and a delayed right to appeal. Mrs X has also spent time chasing the Council for action. This is injustice.
32. The Council has apologised for delay and outlined action to address the EP shortage within its service. It has also acknowledged our expectation that it commission private EPs where necessary. However, the Council has provided no evidence it attempted to commission a private EP in this case until it received Mrs X’s suggestion in January 2023. And it has provided no good reason for not doing so. This is fault. Mrs X spent time sourcing an EP herself. This is injustice.
33. I note the Council upheld Mrs X’s complaint at stage 1 and apologised. However, I do not consider this was an adequate remedy for the injustice she suffered. I also consider the remedy offered at stage 2 was not adequate. To address this I recommended the Council take into account our Guidance on Remedies in future. However, the Council has since confirmed it already does so.

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Agreed action

34. To remedy the injustice above the Council should carry out the following actions:
35. Within one month:
• Pay Mrs X £500 for distress and uncertainty;
• Issue Y’s Final EHCP;
• Upon issuing the Final EHCP:
1. consider a remedy for any missed provision Y has suffered due to the Council’s delay, taking into account our Guidance on Remedies,
2. inform Mrs X of its decision on any remedy and;
3. refer Mrs X to the Ombudsman should she be unhappy with its decision.
36. Within three months:
• Take action to ensure the Council can evidence, in future, that it has met the Ombudsman’s expectation that councils should directly commission a private EP where necessary in order to complete an EHCP assessment within the statutory timescales.
37. The Council should provide us with evidence it has complied with the above actions.
38. The Council has accepted my recommendations.

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Final decision

39. I find fault by the Council because it delayed completing Y’s EHCP assessment. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman