Summary: The Council failed to carry out an Education, Health and Care Needs assessment for Miss H’s son, J, within the statutory timeframes. This was due to a shortage of educational psychologists. We are satisfied with the Council’s action plan to increase its access to educational psychologists. However, to recognise the personal injustice caused to Miss H and J, the Council will make payments for the delay.

The complaint

1. The complainant, whom I shall refer to as Miss H, complains the Council:

• failed to complete an Education, Health and Care (EHC) needs assessment for her son, J, and issue an EHC plan within the statutory time limits; and
• refused to gain reports from speech and language therapy and occupational therapy for the EHC needs assessment.

2. Miss H says this has caused J to be without suitable education.

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The Ombudsman’s role and powers

3. 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)
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. 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)
6. The courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. 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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What I have and have not investigated

8. I have investigated Miss H’s complaint the Council failed to complete the EHC needs assessment and issue an EHC plan within the statutory time limits.
9. I have not investigated Miss H’s complaint the Council refused to gain reports from speech and language therapy and occupational therapy for the EHC needs assessment. This is because this is connected to the content of an EHC plan, and this has a right of appeal to the SEND tribunal. The law says we cannot normally investigate a complaint when someone has a right of appeal. If a plan is issued and Miss H believes the content is inaccurate or misrepresentative due to these reports not being included, it would be reasonable for her to use this appeal right.

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How I considered this complaint

10. I have considered the information Miss H provided, including the complaint correspondence.
11. Miss H and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

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What I found

Law and guidance

EHC Plan 

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 

SEND Tribunal

13. 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.

EHC assessment following SEND Tribunal

14. Regulation 44 of the Special Educational Needs and Disability Regulations 2014 says that where the SEND tribunal requires a Council to make an assessment, the Council must notify parents that it will make an assessment within two weeks. Following the assessment, if the Council decides not to issue an EHC plan, it must notify the person within 10 weeks of the SEND tribunal order. If the Council decides to issue an EHC plan, it must issue a finalised EHC plan within 14 weeks of the SEND tribunal order.

What happened

15. J is home educated as Miss H says his previous school could not meet his needs.
16. Miss H asked the Council to complete an EHC needs assessment for J. The Council at first declined. Miss H appealed to the SEND tribunal about that decision.
17. On 7 September 2023, following an appeal, the SEND tribunal ordered the Council to complete an EHC needs assessment for J.
18. Following the tribunal order, the Council sent assessment requests to the educational psychology service and NHS services. These were to be returned to the Council by 3 November.
19. In late October, Miss H contacted the Council for an update on the EHC assessment.
20. The Council responded to say that it was waiting for the educational psychologist team to complete its part of the assessment. The Council explained there had been a 63% increase in EHC assessment requests which had caused increased demand for educational psychologist assessments. The Council said this had caused delays in the process.
21. On 16 November, Miss H made a stage one complaint to the Council about the delay in J’s EHC assessment.
22. The Council responded two weeks later. It apologised that it was now late in deciding whether J needed an EHC Plan, as it had not been able to access an educational psychologist to carry out an assessment within the statutory timeframe.
23. It explained this was due to the national shortage of educational psychologists and set out the steps it was taking to increase its supply of these professionals.
24. Miss H was unhappy with this response and the continued delay in J’s EHC needs assessment. In December, she asked the Council to escalate her complaint to stage two.
25. The Council responded three weeks later upholding Miss H’s complaint about the delay. It apologised again and set out steps it had taken to improve its access to educational psychologists including:
• trying to contract locum educational psychologists;
• use of virtual assessments so it can use educational psychologists from across the country; and
• considering assessments in chronological order by date of application with reasonable preference being given to those children and young people in key transition years.
26. J is still waiting for an educational psychologist assessment and the Council have not yet decided whether he needs an EHC plan.

My findings

27. We expect councils to follow the statutory timescales set out in the law and the Code.
28. The Council should have informed Miss H of its decision whether J needed an EHC plan by 16 November 2023. The Council has still not made this decision due to the lack of educational psychologists available to assess J.
29. Although lack of educational psychologists is out of council control, this is an example of service failure, which we still consider to be fault.
30. We cannot say what support, if any, J may receive when the assessment is concluded. However, this fault has caused frustration and uncertainty to Miss H and J.
31. I welcome the Council introducing service improvements to respond to the increased demand for EHC assessments and to manage the shortage of educational psychologists.
32. I am satisfied with these service improvements and therefore will not recommend anything further here. However, I recommend the Council provide a remedy for the personal injustice caused to Miss H and J by the delays in the EHC needs assessment.

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Agreed action

33. Within one month of the final decision, the Council agreed to:

• pay Miss H £100 per month of delay from the statutory deadline of 16 November 2023 until the date the final EHC plan (or the letter stating a decision not to issue) is sent to Miss H. This is to acknowledge the continued frustration and uncertainty caused by the delay in deciding whether to issue an EHC plan.

34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman