Summary: There was fault by the Council in failing to complete an EHC needs assessment within statutory timeframes. This has caused injustice. The Council will apologise, make a financial payment, consider putting in place interim provision and make service improvements. The complaint is upheld.

The complaint

1. Ms X complains on her own behalf and on behalf of her daughter who has special educational needs (SEN). Ms X complains the Council has failed to complete an Education, Health and Care Needs Assessment (EHCNA) within the statutory time frame of twenty weeks.
2. Ms X says as a result her daughter is not getting the support she needs in school and is falling behind. Ms X is also concerned the delay may impact on options for secondary school as her daughter will be in Year 6 next year and they will shortly need to express a preference for schools.
3. Ms X also complains there has been poor communication by the Council. An agreement to provide regular updates has not been kept to and the delay is creating additional time, trouble, frustration and distress.

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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. 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

6. I have considered information provided by Ms X including her complaint correspondence with the Council.
7. I have spoken to Ms X by telephone.
8. 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.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

10. 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.
11. The Council is responsible for making sure that arrangements specified in an EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
12. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs 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 give its decision within six weeks whether to agree to the assessment;
• 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;
• 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.
13. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes:
• the child’s education placement;
• medical advice and information from health care professionals involved with the child;
• psychological advice and information from an Educational Psychologist (EP);
• social care advice and information;
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and
• any other advice and information the council considers appropriate for a satisfactory assessment.

Key Facts

14. Ms X’s daughter attends a mainstream primary school. She has SEN and has worked below expected levels for an extended period. Ms X told me she has been asking the School to apply for an EHCNA for several years, but it only recently agreed to do so, once it had the necessary evidence that suitable progress had not been made despite school-based interventions.
15. The Council’s complaint response said it decided to assess for an EHC plan in early December 2022, with a draft plan due by week 16 at the end of March. Any final EHC plan was due by late April 2023.
16. The Council has missed this deadline. It told Ms X this was because advice from an Educational Psychology (EP) is a mandatory part of the assessment process because Ms X’s daughter has not previously seen an EP. The Council told Ms X there was a national shortage of EPs and it had experienced difficulty in recruiting. It said it was working with commissioning services and taking steps to address the shortfall.
17. The Council accepted service failure and upheld the complaint. It apologised to Ms X and said within 14 working days it would nominate an officer to be Ms X’s point of contact who would keep her regularly updated.
18. Ms X told me that this had not improved the situation. She had been promised phone calls to update her, which did not happen. Ms X told me an EP has yet to be allocated and there is no timescale for how long the advice will take.
19. The Council told Ms X it had considered whether to seek private EP advice given the capacity issues in its in-house service, but this had not been viable because of a national shortage of EPs. It also would not agree to fund an EP chosen by Ms X because the Code said that EPs should normally be employed or commissioned by the local authority.
20. The Council did signpost Ms X to Early Help services, these are usually services available within the community which are suitable for disabled children.
21. Ms X told me that existing evidence supported her daughter required one-to-one adult support, but the School had said it could not afford to hire a member of staff without funding attached to an EHC plan. The School had funded a private dyslexia assessment which had led to her daughter being diagnosed with dyslexia and to two referrals for further investigation of her SEN.
22. Ms X says she asked the Council to issue a plan based on the evidence available so as not to delay her daughter receiving necessary support, but the Council would not do so as an EP report is required.

Findings

Delay in completing EHCNA

23. The Council has failed to complete the EHCNA within the maximum twenty week timescale. This is fault.
24. The Council’s Cabinet has identified delays in EHCNAs as a systemic issue. It has doubled the number of caseworkers and set a target that by the end of this year 70% of EHCNA will be completed within twenty weeks. This still represents a significant percentage of cases which will not comply with the statutory timescale. This also does not resolve the problem with EP capacity.
25. The Council is correct to say EP advice is a mandatory part of an EHCNA. However, it is the Council’s duty to ensure it has sufficient resources in place to meet statutory timescales. We identified EP capacity as a factor in another recent complaint we investigated against the Council. In that complaint the Council agreed to provide us with evidence of the actions it is taking to increase EP capacity and reduce waiting times.
26. The Code does leave open the option of councils commissioning EP assessments and reports from the private sector and there is no bar to the Council doing so.
27. The Council can also provide additional funding to schools outside of an EHC plan.

Injustice

28. Ms X has been put to additional time, trouble and frustration trying to get the EHCNA completed. Ms X continues to have to chase the Council when it had promised to keep her regularly updated.
29. It is premature to assess the impact of the fault on Ms X’s daughter. At this point we do not know if the Council will issue an EHC plan or what extra special educational provision may be made via a Plan.

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Agreed action

30. Within one month of the final decision, the Council will:
• Apologise to Ms X and pay her £200 to acknowledge the time and trouble caused by the delay in completing the EHCNA.
• Ensure that Ms X receives updates at least every 14 days.
• Consider the evidence already obtained via the EHCNA and whether the Council is willing to make additional funds immediately available to the School to enable it to put in place the provision advised by other professionals pending the outcome of the EHCNA. The Council should provide Ms X with its decision in writing, with reasons, and provide a copy to the Ombudsman.
• Review the options for seeking EP advice, internally and in the private sector, and provide Ms X and the Ombudsman with a clear timescale for when an EP assessment will be available and the EHCNA completed.
31. When the EHCNA is completed the Council will consider whether a financial payment to acknowledge the impact of the delay on Ms X’s daughter is appropriate by considering our Guidance on Remedies. The Council should consider what special educational provision would have been in place earlier but for the delay in issuing any final plan. The Council should then discuss with Ms X whether a financial payment or catch-up provision is suitable. If the Council cannot agree a remedy with Ms X, then Ms X may refer this part of the complaint back to the Ombudsman for further consideration.
32. The Council should share with the Investigator the information about EP capacity it has agreed to supply the Ombudsman with regard to the other similar recent complaint.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation. There was fault by the Council in failing to complete an EHC needs assessment within statutory timeframes. This has

35. caused injustice. I am satisfied the actions set out above are a suitable remedy to the complaint. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman