Summary: Mrs X complained the Council delayed completing her child, Child Y’s Education Health and Care (EHC) needs assessment and deciding to issue Child Y with an EHC plan. The Council was at fault. Its failure to meet statutory timescales was due to a delay in obtaining Educational Psychologist advice. The Council will apologise and pay Mrs X £350 for the distress and uncertainty the delay caused between mid-March 2023 and late June 2023.

The complaint

1. Mrs X complained the Council delayed issuing her child, Child Y’s, Education Health and Care (EHC) plan within the statutory timescale. Mrs X also complained the Council’s communication with her was inadequate.
2. As a result, Mrs X said she had been put to unnecessary time and trouble pursuing the Council and distress. Mrs X said she wanted the assessments completed so Child Y’s EHC plan could be issued before the end of this academic year, so Child Y would receive the correct support and provision.

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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 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

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

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What I found

Education, Health and Care plan (EHC) plan

9. 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)
10. 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.
11. 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.
12. Those consulted have six weeks to provide the advice.
13. 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).

What happened

14. Child Y lives with their family and attends School 1. Child Y has a number of health and learning conditions, including Autism Spectrum Disorder.
15. On 21 October 2022 School 1 asked the Council to carry out an Education Health and Care (EHC) needs assessment and the Council acknowledged this request in early November 2022.
16. In late November 2022 the Council agreed to complete an EHC needs assessment for Child Y. Four days later the Council told Mrs X its decision.
17. Between mid-December 2022 and late January 2023 School 1 emailed the Council three times to ask for an update on the EHC needs assessment but did not receive a response. Mrs X also emailed the Council twice without a response.
18. In mid-February 2023 the Council told Mrs X it was still awaiting a date for an Educational Psychology (EP) assessment for Child Y and it would keep her updated.
19. In late February 2023 Mrs X contacted the Council for an update but did not receive a response so she made a formal complaint. She was unhappy that the EP assessment had not yet taken place and the Council had not responded to requests for updates from her. She said she wanted the final EHC plan to be issued within the 20 week statutory timeframe so Child Y received the support they needed.
20. In early March 2023 the Council responded to Mrs X’s complaint, it said:
• it agreed to carry out an EHC needs assessment for Child Y in late November 2022;
• it should have either decided not to issue an EHC plan by mid-February 2023 or should have issued a final plan by mid-March 2023. It accepted it had not met the statutory deadline;
• it could not decide whether to issue Child Y with an EHC plan until the EP assessment had been done. The delay in carrying out the EP assessment was due to a shortage of private and public EPs;
• it was taking action to address the EP shortfall and obtain EP advice for Child Y;
• within 14 days it would assign Mrs X a Council officer to update her and to agree with her when it would send further updates; and
• it apologised for the failings identified and said she could complain to us if she remained dissatisfied.
21. Mrs X said the Council did not contact her as promised in its complaint response. She contacted her MP. In April 2023, the Council told the MP Child Y had not yet been allocated an EP but was a priority case and it would continue to update Mrs X on a ‘regular basis’.
22. Mrs X remained unhappy and contacted us. She told us:
• following the complaint response the Council had not regularly updated her about the progress with Child Y’s EHC needs assessment; and
• Child Y’s EP assessment was completed in mid-May 2023.
23. Following the issue of an earlier draft of this decision statement, in late June 2023, the panel decided Child Y did not need an EHC plan because their needs were already being met.

My findings

EHC Plan delay

24. 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.
25. 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.
26. In line with statutory timescales the Council should have decided whether to issue Child Y with an EHC plan by mid-February 2023. It would have needed to obtain an EP report by mid-January 2023 to meet that deadline. The EP report was not available until mid-May 2023.
27. The Ombudsman is aware there is a national shortage of public and private EPs 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 within statutory timescales regardless of the reasons for that service failure.
28. The delays have had an impact on both Mrs X and Child Y. It caused Mrs X frustration and uncertainty about whether Child Y would have received support sooner. It also meant Mrs X’s appeal rights were delayed.
29. I have made a recommendation to acknowledge this injustice up to the end of June 2023 when the Council decided not to issue an EHC plan. Mrs X has a right to appeal this decision if she is unhappy with it.
30. The Ombudsman has already made recommendations to this Council on similar cases. It has been asked to provide evidence of actions it is taking to increase EP capacity and reduce waiting times case and produce an action plan to address delays in the EHC plan process case and case. On this basis, no further recommendations are needed.

Communication

31. Mrs X and School 1 contacted the Council seven times between December 2022 and early-March 2023 for an update on Child Y’s EHC needs assessment but did not receive a response. The Council updated Mrs X in mid-February 2023 and then did not update her again until its complaint response. This caused Mrs X frustration.
32. The complaint response said it would allocate a specific officer to update Mrs X and they would agree on future updates. This did not happen and the Council continued to fail to keep her updated. This caused Mrs X frustration and time and trouble contacting the Council. The Council has agreed to take action to review its processes.

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Agreed action

33. Within one month of the final decision the Council will pay Mrs X £350 to acknowledge the distress, frustration and uncertainty caused to her and Child Y by the Council’s failure to decide whether to issue a final EHC plan in line with statutory timescales. This remedy is calculated at £100 per month from the date the Council should have issued the final EHC plan in mid-March 2023 until the panel decision at the end of June 2023.
34. Within one month of the final decision the Council will apologise to Mrs X for:
• poor communication between December 2022 and mid-March 2023; and
• not taking the action it promised in its complaint response.
35. Within three months of the final decision the Council will review its processes to ensure that actions recommended in complaint responses are carried out, including a mechanism to check all actions have been completed before the complaint is closed.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman