Summary: Mrs Y complained about the delays in the statutory Education, Health and Care plan assessment and an assessment by an educational psychologist. She also complained about the Council’s poor communication with her about the assessments. Mrs Y said the Council’s actions caused her and her son avoidable distress and uncertainty. The Council was at fault for the delays. The Council agreed to our recommendations on how it should remedy the injustice caused to Mrs Y and B.

The complaint

1. Mrs Y complains the Council failed to:
• make a referral to the educational psychology service until eight weeks after it had agreed to carry out her child, B’s statutory assessment;
• carry out the Education, Health and Care Plan needs assessment of her son, B within the statutory 20 weeks; and
• communicate with her effectively about the progress of the assessment.
2. She says the Council’s delay in the statutory assessment caused her and B considerable distress. She says that because of the lack of an EHC plan and support, B was suspended from school and had to attend a Pupil Referral Unit (PRU).
3. Mrs Y says that this caused B so much anxiety that he stopped accessing any form of education and continues to be socially isolated.
4. Mrs Y would like the Council to secure the Educational Psychologists (EP) assessment without a further delay. She would also like the Council to issue B’s EHC plan this term, so that he can start a specialist placement from September 2023.

Back to top

The Ombudsman’s role and powers

5. 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)
6. We make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. If we are satisfied with a council’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

9. I considered the information Mrs Y provided together with the Council’s response to her complaint.
10. I have considered the relevant legislation and statutory guidance, set out below.
11. Mrs Y and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Education, Health and Care Plan (EHC plan)

12. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to local authorities about how they provide support for children and young people with SEN.
13. The majority of children with SEN have those needs met by schools and early years settings. Those bodies have a responsibility to identify children with SEN, sometimes with the help of outside specialists.
14. If a school or parent has concerns that, despite a school’s SEN provision, a child is not developing, they can ask a local authority to consider whether it needs to carry out an assessment of EHC needs.
15. An Education, Health and Care Plan (EHC plan) is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
16. The Council must respond to all requests for an EHC plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHC plan must take no more than 20 weeks.
17. Where there are exceptional circumstances, it may not be possible for the Council to meet the timescales. The Council should tell the child’s parent or the young person of the reasons for any delays.
18. Councils must seek advice from the child’s parent, their school, healthcare professionals involved, an educational psychologist, and from anyone else the parent has reasonably requested (paragraph 9.49)
19. The Regulations set out the minimum information and advice the Council should seek in an EHC assessment. A parent or young person can ask the Council to seek advice from anyone within health, education or social care and, provided it is a reasonable request, the Council must do so. It is more likely to be reasonable if that professional is already involved with the child.
20. The Regulations say the advice should be provided within six weeks, which is also the timescale for a local authority deciding whether it needs to draw up a plan.
21. The Code says a council:
• must ensure the child’s parents are fully included from the start and consulted throughout the production of the plan;
• should carry out timely, well informed assessments.
22. The Council can only issue an EHC plan after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a plan or not.
23. If the Council decides to issue a plan it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request but it should be able to explain why the EHC plan meets the needs of the child.
24. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHC plan as these are appealable to SEND Tribunal.
25. The Ombudsman can look at any delay in the assessment and creation of an EHC plan as well as any failure by the Council to deliver the provision within an EHC plan.
26. Once the Council completes the EHC plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.

Part-time timetables

27. The Department for Education’s non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution.
28. Schools should notify councils of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, ‘Out of school…out of mind?’, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

29. In August 2022 the Council told Mrs Y that it would assess the needs of B to check if he needed an EHC plan.
30. In September 2022 the Council began the statutory assessment of B’s needs. The Council made an educational psychologist (EP) referral for an assessment. In the email to the EP service the Council said this “…this request should have been sent at the start of August but was somehow missed.”
31. In October 2022 Mrs Y emailed B’s case worker and said he had been excluded from school for the fifth time, this time for five days. Mrs Y said that B was at risk of permanent exclusion, and she was worried about his mental health. She said other family members also commented on the negative change in his demeanour.
32. In mid-October 2022 the Council’s SEN Officer sent a referral to an inclusion officer and said that B had been suspended a few times and the parent and school needed support on how to manage this best.
33. In January 2023 Mrs Y complained to the Council about:
• The EHC plan assessment taking longer than 20 weeks; and
• poor communication with SEND department, and not being contacted by B’s key worker since November 2022.
34. At the same time, she told the Council:
• B was suspended seven times and was at risk of permanent exclusion from school;
• B was on a part-time timetable, but it was not supporting his needs, and he was still distressed; and
• the situation was negatively affecting B’s self-esteem, and his attitude towards school.
35. In late January 2023 B’s school emailed the Council and told it that since February 2023 B would be attending another placement for seven weeks. This was because he was in danger of a permanent exclusion.
36. In early February 2023 the Council issued its first stage complaint response to Mrs Y and said:
• B’s assessment began in September and the professionals should have provided their evidence by 8 November 2022. The Council received the evidence from the Health Department, Social Care and B’s school but the advice from an EP was still outstanding;
• It was sorry for the delay in the statutory assessment;
• that communications with the case officer showed she was updated about the delay in EP advice and then updated again in October and November about the progress.
• the case officer was absent for a period of time and apologised if any of Mrs Y’s emails were not answered in the period of their absence; and
• it chased the EP advice and that B should be assigned to an EP within next two weeks.
37. Mrs Y asked the Ombudsman to consider her complaint, however we asked her to complete the Council’s complaint process before we would get involved.
38. Six days later Mrs Y wrote to the Council and said she was not happy with its response and asked it to escalate her corporate complaint further. She said that the social care department contacted her in early September 2022 to gather information for the statutory assessment. She said the Council did not make an EP referral until 27 September 2022, which was eight weeks after the Council had agreed to carry out the statutory assessment for B.
39. On 20 February 2023, Mrs Y chased the Council and asked if an EP had been assigned to B because it now had been three weeks. She also told the Council B was at an intervention placement in a different setting.
40. On 28 February the Council responded to Mrs Y’s request to escalate her complaint and it:
• upheld her complaint;
• accepted there was delay in the statutory assessment process which should have concluded in late December 2022;
• explained the difficulty with the EP shortage;
• said that despite the delay the Council could not guarantee the outcome Mrs Y wanted, which was a speedy EP assessment;
• said it could not commission a private EP because of a shortage in EPs generally; and
• said that within 14 days it would make sure B had access to suitable educational provision.
41. After the Council sent a final complaint response to Mrs Y she approach the Ombudsman again and we agreed to consider her complaint.

My findings

EP referral

42. When the Council agreed to assess B, it has told us it was changing its internal education management system to an online database. It says this was the cause of delay in requesting an EP referral for B. Instead of being done in August, it happened in September. The Council accepted that the referral was delayed by a month. This is fault.
43. From the referral the EP assessment should have happened by October 2022, but this did not take place until March 2023. This is fault. It caused Mrs Y distress and uncertainty about what would have happened had the Council made the EP referral sooner.
44. The Council has shown us that it was chasing the EP referral between January and March 2023. However, we consider the Council should have stepped in sooner than January 2023 following a referral in September 2022.
45. The Council did not show us any evidence it attempted to engage an external EP service to secure an EP assessment sooner than March 2023. This causes more uncertainty to Mrs Y about what would have happened had the Council attempted to secure an EP assessment with an external provider.
46. The Council has now taken action to increase its capacity to carry out EP assessments. It recruited locum and associate EPs and it commissioned an external supplier to carry out the statutory work.

Education, Health and Care Plan needs assessment

47. The Council accepted that it failed to complete the process and issue a final EHC plan within 20 weeks from the date of Mrs Y’s request in June 2022. It should have issued Y’s final plan around the end of December 2022. The Council is yet to issue B’s final EHC plan. This is a significant delay of at least five months which is fault.
48. It continues to have an adverse impact on Mrs Y because it is delaying her right of appeal to the SEND Tribunal and continues to cause avoidable distress and uncertainty. It also means B may have missed out on specialist SEN provision. This is a contributing factor to Mrs Y’s uncertainty.

Communication standards between Mrs Y and the SEND Team

49. From the evidence I have seen, I can see there were substantial periods of time where Mrs Y was not updated about B’s assessment progress.
50. The Council explained the case officer was on sick leave, however the Council should have kept Mrs Y informed. This is fault. This added to Mrs Y’s frustration and uncertainty about B’s readiness to reintegrate back into a school setting.

Council’s monitoring of part-time timetables and B’s access to education

51. The Council’s stage two review complaint response recommended that the SEN service ensured that B had access to suitable full-time education.
52. In the response to my enquiries the Council told me that this was a recommendation only, and the service did not intend to take this recommendation forward. I consider this to be fault.
53. The Council’s complaints procedure says that when the investigation upholds the complaint, the Council will take action to correct it.
54. On this occasion, despite the stage two review upholding Mrs Y’s complaint, the Council did not take all the action the investigation recommended, and we consider this to not be in line with the Council’s own complaint procedure.
55. Whilst the Council’s section 19 duty to provide a child with a full-time education was not engaged, we consider the Council missed an opportunity to ensure that B was receiving a suitable full-time education. This would not have happened, had the Council followed the recommendations from the independent stage two complaint review. This has caused Mrs Y avoidable uncertainty about whether the provision the school put in place for B was sufficient and appropriate for B.
56. Since October 2022 the Council knew that B was suspended numerous times, and Mrs Y in January 2023 reconfirmed that he was on a part-time timetable. The Council has a duty to monitor such provisions.
57. The Council was aware of B’s seven-week placement, and it monitored his return to school following that placement, as it was required to do.

Back to top

Agreed action

58. The Council will take the following action within four weeks from the date of my final decision:
• apologise to Mrs Y and B for the impact of the faults I have identified;
• issue B’s final EHC plan without further delay;
• pay Mrs Y £500 to recognise the avoidable distress and uncertainty caused by the Council’s faults identified in this draft decision; and
• share this decision with SEND officers and emphasise the importance of issuing EHC plans within the statutory timeframes.
59. We acknowledge the real difficulties the Council faces with recruitment and retention of EPs and we note the Council has already taken appropriate steps to reduce the backlog of EP assessments. We note also the problem is a national one.

Back to top

Final Decision

60. The Council was at fault for the ongoing delaying the EHC plan assessment, delay in the EP referral and poor communication with SEN Department. It has accepted our recommendations and our investigation is complete.

Back to top

Investigator's decision on behalf of the Ombudsman