Summary: Ms C complains the Council delayed in assessing X for an Education Health and Care Plan and for failing to keep her informed. The Council is at fault for delays in the assessment process and in keeping Ms C updated. These faults caused Ms C frustration, time and anxiety. To put things right the Council has agreed to make Ms C a symbolic payment and take action to improve services.

The complaint

1. The complainant Ms C, complains the Council:
• delayed in assessing and completing an Educational Health and Care Plan for her son X;
• made promises it did not keep; and
• failed to keep Ms C updated.
2. Ms C says this caused her frustration and distress and X was without suitable education.

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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. 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)
5. 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

6. I spoke with Ms C and considered information she sent. I made enquiries of the Council and considered its response. I also considered:-
• Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’);
• Children and Families Act 2014;
• Special Educational Needs Regulations 2014;
• complaint correspondence;
• Council case notes;
• X’s Education Health and Care Plan and needs assessment;
• Council’s correspondence with Ms C.
7. Ms C 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

What should have happened

EHC Plan

8. 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 are needed to meet them.

Timescales and process for EHC assessment

9. 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 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 Plans is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.

Advice and information for EHC needs assessments

10. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes the child’s educational placement and psychological advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice.

What happened

EHC assessment and plan process

11. X finds it difficult to regulate his emotions which results in behaviour which he needs support to manage both at home and school. The Council says Ms C asked the Council to assess X for an EHC Plan on 31 May 2023. The Council agreed to assess X for an EHC Plan on 18 July 2023 and told Ms C of its decision on the same day. The Council updated Ms C on 18 September asking whether she would agree to a virtual Educational Psychologist (EP) assessment as this would speed up the assessment. Ms C agreed to this. The Council sent Ms C another update on 19 December saying there was still delay in allocating the EP. On 8 January 2024 the Council assigned an EP and the Council issued a final plan on 9 April naming a school.

Complaints process

12. Ms C complained to the Council on 17 July 2023 and in January 2024 about delays in the EHC process. In the second complaint Ms C also complained about the lack of communication from the Council which left Ms C having to make multiple phone calls and emails to the Council. Ms C says an officer also misled her about when the Council would assign an EP. Ms C says she accepted a virtual EP assessment on the basis this would be quicker but this did not occur.
13. The Council responded to Ms C about the delay explaining it was experiencing high demand for educational psychologist assessments which meant the process was taking longer than it should. The Council said it was working to reduce the delays which included a recruitment and retention drive of EPs and the potential use of virtual assessments in the future. It did not address Ms C’s complaint about the lack of communication.
14. In response to my enquiries the Council accepted it did not fully respond to Ms C’s complaints. It explained it had decided not to pursue virtual assessments as it could not employ enough EPs for this to be an expedited route. The Council says an officer should have activated her out of office and provided an alternative contact for while she was away. It explained the delay of another officer was because she was waiting for information from the school. The Council says the officer used this information to decide whether to assess X.

Is there fault causing injustice

EHC process

15. The Council delayed by a week in deciding whether to assess X for an EHC plan. This is not in line with the statutory timescales in the Code and is fault.
16. The Council has accepted that it did not issue the EHC Plan for X within 20 weeks. The Council took just over 10 months. The Council in its response to the complaint explained the reasons for the delay which included the availability of Educational Psychologists. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for the service failure. While I accept the reasons for the delay, this is fault.
17. The delay has caused frustration and worry for X’s family and caused concern that X was not receiving the support he needed. It also caused Ms C added time and trouble as she had to make formal complaints to receive updates.
18. The Council raised Ms C’s expectation that a virtual assessment would hasten matters. This did not occur. The Council did not update Ms C about this or about the progress of X’s assessment. This is fault.
19. Although the Council responded to Ms C’s complaint promptly it did not respond to all the issues she raised. The failure to respond to her complaints properly is fault.
20. While the Council’s acceptance of fault in response to my enquiries is welcomed, the actions caused Ms C added time, trouble, and frustration which the Council has not yet remedied.

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Agreed action

21. I have found fault in the actions of the Council which has caused X and Ms C injustice. The Council says a national shortage of Educational Psychologists caused the delays in the assessment process. It says it has taken several steps to improve the situation. We have previously found the Council has acted to respond to the increased demand for EHC needs assessments and to manage the shortage of Educational Psychologists. As these actions are current I have made no service improvement recommendations for this part of the complaint.
22. I consider the actions below are suitable to remedy the personal injustice caused to Ms C and X and to improve future practice.
23. Within one month of the final decision the Council has agreed to:-
1. apologise to Ms C for the distress caused by delay, lack of communication and shortcomings in the complaint responses;
2. pay Ms C £575 to recognise the distress, frustration and uncertainty caused to her and X by the Council’s failure to issue him a final EHC plan in line with statutory timescales. This remedy is roughly £100 per month from the date the Council should have issued the final EHC plan in October 2023 until the date it issued the final plan in April 2024.
24. Within three months of the final decision the Council has agreed to:-
1. review how officers respond to complaints to ensure they respond to all parts of the complaint;
2. remind staff of the importance of providing updates; and
3. remind staff about the importance of creating out of office alerts.
25. The Council should provide us with evidence it has complied with the actions above.

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Final decision

26. I have found fault in the Council’s actions which has caused Ms C, and X injustice. I have completed my investigation and closed the complaint based on the agreed actions above to remedy their personal injustice and to improve future services.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman