Summary: Mrs E complains the Council delayed its education, health and care needs assessment for her son, due to a delayed educational psychologist assessment. She also complains about the Council's poor communications. The Ombudsman upholds the complaint. The Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Mrs E, complains:
• the Council has delayed issuing an EHC plan for her son (whom I shall refer to as F). This is due to a delay in an educational psychologist assessment;
• she complained and was ‘bounced around’ by several members of the Council’s SEND team;
• the Council’s communications with her have been inadequate, even after it made a commitment in response to her complaint.
2. Mrs E says F is struggling at school, which affects his behaviour both at home and school. In turn, this affects all the family’s mental health. And F has missed out on SEN provision he was entitled to.

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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 significant injustice, or that could cause injustice to others in the future, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
5. The law says we cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. There is a right of appeal to the SEND Tribunal 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.
8. 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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

10. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs E;
• made enquiries of the Council and considered its response;
• spoken to Mrs E;
• sent my draft decision to Mrs E and the Council and considered their responses.

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What I found

Relevant law and guidance

11. Children with special educational needs (SEN) may have an 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)
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 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 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.

13. As part of the EHC assessment councils must gather advice from relevant professionals. (SEND 2014 Regulations, Regulation 6(1)) This includes:

• the child’s education placement;
• medical advice and information from health care professionals involved with the child; and
• psychological advice and information from an educational psychologist.

Those consulted have six weeks to provide the advice.

14. Once the required EHC needs assessment reports are in, if the council goes on to:
• refuse to issue an EHC plan, the law says it must complete the process within 16 weeks from the date it received the initial request for an assessment;
• agree to issue an EHC plan, the law says it must complete the process by 20 weeks from the date it received the initial request for an assessment.
15. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan. (SEND Regulations, Regulation 13(1)) 
16. At the stage when a council refuses to issue an EHC plan, or when it issues a final EHC plan, parents and the young person have a right to appeal to the SEND Tribunal if they disagree with the council’s decision. They have two months to lodge an appeal.

What happened

Delays in educational psychology assessments in Surrey

17. The Council told us it has a backlog of around 1000 EHC needs assessment awaiting an educational psychologist assessment. It explained how its Educational Psychology Service had seen a 64% increase in referrals (since 2020) for Education, Health and Care plans. It noted a national shortage of qualified educational psychologists and other key professionals who provide advice as part of the needs assessment process. The core Educational Psychology Service staffing was at 50%. As a result, there had been high demand for assessments but a reduced capacity in the teams that undertake assessment work.
18. The Council has explained how its Service had taken several actions to address the delays and improve adherence to the timescales in the Code. These included:

• prioritising statutory assessment work over other work;
• advertising both locally and nationally to fill positions;
• extending the use of locum and associate educational psychologists;
• commissioning an external provider to support this work;
• some temporary changes to its policy on accepting private educational psychologist assessments; and
• developing a recovery plan, with short-term and long-term goals.

19. The Council has acknowledged that, in teams with staffing vacancies, there have been gaps in communications with parents. It has produced an information leaflet for parents who are awaiting assessment, advising them of the reasons for the delays. It also says it would provide parents with an update every three weeks.

F’s assessment

20. F was a child of pre-school age when, on 14 March 2022, the Council first received a request to assess F’s EHC needs. Mrs E advises she believes F is on the autism spectrum and has additional educational needs. On 21 April, the Council wrote to Mr and Mrs E advising it had decided not to proceed with an assessment. Mrs E appealed the Council’s decision to the SEND Tribunal.
21. At the beginning of February 2023, the Council agreed to assess F. The SEND Tribunal sent its Order on this date.
22. By then F was in a Key Stage transfer year. Mrs E complained. In early March the Council responded. It advised that it had not found evidence of fault, as the Council was still within the 20 weeks it had to produce its decision. But the response did recommend that, within 14 days, the Council would nominate an officer to keep Mrs E updated on the progress of the EHC needs assessment.
23. Later in the month, Mrs E complained she had not received the promised update. The relevant team’s manager responded apologising the team had not nominated an officer.
24. Mrs E complained to the Ombudsman. We made enquiries. At the beginning of August, the Council accepted fault and apologised. It offered a payment of £500 for the distress caused to the family.
25. In September Mrs E advised us the Council had still not completed an educational psychologist assessment.

Analysis

26. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate matters a parent has appealed to the SEND Tribunal. This means I cannot investigate any of the events in this complaint in the time before February 2023 as Mrs B appealed the Council’s decision. But I can consider matters then, as the Council agreed to complete an EHC needs assessment for F, so ending the appeals process.
27. We expect councils to follow the statutory timescales set out in the law and Code which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
28. The Council has accepted there was fault in this case. It is required by law to produce a final EHC plan within 16 weeks or 20 weeks in total (depending on its decision (see paragraph 14)). Six weeks of that time was taken in the time before the decision Mrs E appealed. So it should have completed its assessment by 10 May 2023 at the latest. But to date the plan is outstanding.
29. We note the Council’s explanation of the problems facing its SEND service. But the delay was not in line with the Code and so was service failure.
30. I also uphold Mrs E’s complaint about poor communications. While I accept that there may have been little news, the Council should have kept in touch with Mrs E at regular intervals, especially so after it committed to do so.
31. As there is fault in this case, I have to consider the injustice caused to Mrs E and F and recommend a remedy. As the needs assessment has not yet been completed we do not know what needs will be met in a plan and so cannot provide a remedy for lost provision. However, Mrs E and F have experienced uncertainty and distress.
32. In making my recommendation, I am taking into account the delay is ongoing. And also the increased uncertainty in an important year for F – a Key Stage change and change of school. Mrs E has also been put to time and trouble pursuing this matter.
33. I also want to acknowledge the proactive steps the Council is taking to try to resolve the lack of educational psychologists. It has recently approved significant financial investment to address these issues and resulting delays. So I am making no recommendations about service improvements.

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Agreed action

34. To remedy the injustice resulting from the identified fault in this case the Council has agreed that, within one month of my final decision, it would take the following action:
• apologise to Mrs E for the faults identified in this statement;
• agree to provide the update it has previously agreed to make;
• make Mrs E a symbolic payment of £700 to acknowledge her and F’s distress, uncertainty and her time and trouble. This includes an extra symbolic amount to recognise the particular stresses due to the delay at a key stage in F’s academic career; and
• to acknowledge the ongoing uncertainty and distress, make Mrs E a symbolic payment of £100 for every month, from October 2023, until the final plan is issued. We accept that this payment will be calculated and paid retrospectively once the decision about the EHC plan is made rather than in monthly instalments.
35. This recommendation is a substitute for the remedy the Council has previously offered.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman