Summary: Mrs X complains the Council was at fault in the way it carried out an Education Health and Care needs assessment on her child causing distress. We found fault because the Council delayed carrying out the needs assessment and have recommended a suitable remedy. So, we have completed our investigation.

The complaint

1. The complainant who I shall refer to here as Mrs X, complains the Council failed to carry out an Education, Health, and Care Needs Assessment (EHC needs assessment) for her child Y following a SEND Tribunal appeal. Mrs X says the Council failed to carry out the needs assessment within the statutory timescales.
2. Mrs X says this has caused distress to Y and affecting their right to an education.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
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 reviewed the information Mrs X provided.
7. I made enquiries with the Council, considered its response, and reviewed the relevant law.
8. Mrs 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

9. 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.

Timescales and process for EHC assessment

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 guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following:
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• 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.
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, 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).
11. Regulation 45 of the SEN Regulations 2014 covers where a child’s parents have appealed to the SEND Tribunal and a council notifies the SEND Tribunal it will not oppose the appeal before it submits a response. The appeal is treated as if it was determined in favour of the appellant. In these cases, a council must notify the child’s parents within 2 weeks of the date it notified the SEND Tribunal it would not oppose the appeal that it must make the EHC needs assessment.
12. If following the EHC needs assessment under regulation 45 a council decides it is necessary for special educational provision to be made for the child in an EHC Plan, it must send the final plan to the child’s parent within 14 weeks of the date it notified the SEND Tribunal it would not oppose the appeal.

Advice and information for EHC needs assessment

13. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).

What happened

14. This is a brief outline of the complaint and is not meant to include all events and communications between Mrs X and the Council.
15. In February 2023 Mrs X applied for a EHC needs assessment for Y. The Council refused the request. Mrs X appealed to the SEND Tribunal in May 2023. The Council told the SEND Tribunal it would not oppose the appeal on 11 August 2023, and it would assess Y. The Council told Mrs X it could not complete the needs assessment within the statutory timescales because of significant challenges with recruitment and retention of EPs and other staff.
16. Mrs X complained to the Council in January 2024 it had not carried out the assessment and Y’s individual pupil resourcing agreement (IPRA) from the school was due to expire. The IPRA payment from the Council is used by a school to support pupils who have medical needs or are transitioning between school stages. In this case it was used to help Y move from nursery to reception class. Mrs X asked the Council to appoint an EP and complete the EHC needs assessment.
17. The Council responded to Mrs X’s complaint and accepted it had missed the 20-week timescale set out in the SEN Code of Practice. It explained the reasons for the delay were due to:
• The recruitment and retention of EPs for the Council and others.
• The number of requests for needs assessments had risen sharply since the Covid 19 pandemic lockdowns to over 3,500 a year which had placed added strain on the SEND teams.
18. The Council confirmed it was taking action to:
• Recruit by applying a rolling advert to recruit EPs and to retain the EPs it appoints.
• Develop an approach to using a ‘virtual assessment’ where appropriate.
• Increase its associate EP pool which is its independent EP workforce.
• Invest additional funding to expand the SEND team by 46 FTE and was actively recruiting.
• Work with mainstream schools as the specialist schools in its area were full to improve inclusion and parental confidence. The Council planned to launch a new inclusion strategy in September 2024.
• All county special schools were full, and the majority have been expanded. But there were significant delays by the Department for Education in building four new special schools approved in 2017 with only one being built so far.
• An Ofsted inspection of the Council’s SEND service in 2019 highlighted a significant weakness with the quality of the Council’s EHC Plans. The Council has put in place an extensive improvement plan with the quality of assessments and plans recommended by Ofsted. In May 2022 when Ofsted revisited it no longer found the EHC Plans a matter of significant weakness.
• Acknowledge the IPRA funding for Y’s school. The Council confirmed it had committed to backdate the agreed funding so it would be providing the resourcing for the school.
19. In March 2024 Mrs X provided an independent EP report to the Council due to its delay in allocating Y to a Council EP. The Council’s resourcing panel (panel) checked and agreed the report. The Council told Mrs X on 18 March 2024 it had started the needs assessment for Y and allocated the case to a SEND officer. The officer told Mrs X of the needs assessment process and sought further updated advice from professionals. The date for the return of professional advice was 29 April 2024
20. The Council received the professional advice by 29 April 2024 and the officer wrote a needs assessment report. This was shared with Mrs X before an outcomes meeting held on 10 May 2024. Mrs X says the Council used their EP report in the EHC Plan which cost them £550 to commission.
21. The Council and Mr and Mrs X discussed the needs assessment report at the outcomes meeting. Following the meeting the panel agreed to issue Y with a EHC Plan. The Council issued a draft EHC Plan to Mrs X on 13 May 2024 for her comments. The Council issued the final EHC Plan on 24 May 2024 naming a primary school for Y, taking nearly 10 weeks from 18 March 2024 when the Council started the needs assessment process. The Council confirmed the school was receiving the IPRA funding for Y and it made a backdated payment.

Council comments on the complaint

22. The Council accepts the delay in Y’s case was due to the need to wait for an EP. It explained significant difficulties in recruiting and retaining EPs as well as recruiting associate EPs. This was despite having a continuous national advert out and employing a pool of associate EPs. But there was still a shortfall between the number of available EPs and number of agreed EHC needs assessments.
23. The Council says it has taken several steps to support improvements in its response to statutory deadlines. This includes commissioning further EPs and a review of the 20-week processes and practices. This is to ensure a streamlined and quicker process where possible. And the removal of the outcomes meeting which is non statutory as a proposed plan meeting is already in place with parents. The Council says it is already seeing small steps of improvement on the reported data.
24. The Council says a SEND officer regularly updated Mrs X about the delay, but she decided to commission her own EP report. The Council confirms it took full consideration of the independent EP report obtained by Mrs X when producing the EHC Plan for Y. And this was the only psychological advice used as part of the assessment.

My assessment

25. The Council refers to a 20-week timescale for the EHC needs assessment in Y’s case. But the Council decided not to oppose the appeal on 11 August 2023 and agreed to carry out an EHC needs assessment. So, the needs assessment process in this case falls under Regulation 45 of the SEN Regulations 2014 with a 14-week timescale.
26. This means the starting date for the needs assessment to be carried out was 14 August 2023 being the first working day after the Council notified the Tribunal it did not oppose the appeal. The date the Council should have issued a final EHC Plan was therefore 20 November 2023 being 14 weeks later. The Council has accepted it has taken longer than it should to have started the needs assessment process due to a shortage of EP’s and increase in number of needs assessment requests. It is unfortunate these reasons affected the Council’s ability to carry out its duties which I consider amount to service failure by the Council. The service failure has caused Mrs X and Y frustration and distress.
27. The Council has assured us of the actions it is taking to address delays in the EHC Plan process, and it has reported signs of improvement. This has been demonstrated in this case as once the Council started Y’s needs assessment process, it completed it within the statutory timescales. We are therefore satisfied the Council has a plan to address this and is taking steps to address the issue at the heart of this complaint. So, we do not consider there is a need to make service improvements recommendations in this case.
28. However, Mrs X and Y were subject to delay caused by service failure. In such cases we consider a payment of £100 to be a suitable remedy for each month of delay caused by the service failure. For Mrs X and Y, the delay was seven months from August 2023 when the Council should have started the needs assessment to March 2024 when it did so. Therefore, I recommend the Council apologises to Mrs X for the seven months of delay before carrying out the EHC needs assessment and pays her £700 to recognise the distress and frustration caused.
29. We are aware some parents obtained their own EP reports due to delays with councils appointing an EP to provide advice. Sometimes councils will accept the recommendations in these private reports if they meet the standards required of the law and SEN code. Where council has done so and uses the complainant’s EP report instead of obtaining its own, we would recommend the council reimburses the family. In this case the Council confirmed it solely used the psychological advice contained in Mrs X’s EP report in the EHC needs assessment. Because of this I recommend the Council repays Mrs X’s costs of the EP report £550 on receipt of proof of payment.

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Agreed action

30. Within one month of the date of my final decision the Council will:
• Apologise to Mrs X for the seven months of delay before carrying out the EHC needs assessment and make her a payment of £700 being £100 a month for each month of delay between August 2023 and March 2024.
• Repay Mrs X’s costs of £550 for the EP report she commissioned on receipt of proof of payment.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation. There is evidence of fault by the Council as it delayed carrying out an EHC needs assessment on Mrs X’s child, Y. I have recommended a suitable remedy in this case.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman