• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Ms C complains the Council delayed in assessing X for an Education Health and Care (EHC) plan. The Council is at fault for failing to assess X for an EHC plan within the statutory timeframes and update Ms C. To put things right the Council has agreed to make Ms C a symbolic payment and remind staff to keep parents updated when it delays.

The complaint

1. Ms C complains the Council:-
   • delayed in assessing X for an Education Health and Care Plan (EHC plan),
   • has not completed Speech and Language Therapy (SaLT) and sensory assessments for X, and
   • failed to keep her updated on the progress of X’s EHC plan during the delay.
2. Ms C says because of these failures X has missed education and has become socially isolated and anxious. Ms C has had the time, trouble, and distress of supporting X during this difficult period.

Back to top

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).

Back to top

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’s case notes;
   • 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.

Back to top

What I found

Background information

8. X was attending school but from September 2022 she was finding it increasingly difficult to go to school. Because of these difficulties Ms C asked the Council to assess X for an Education Health and Care (EHC) Plan. Ms C asked for an EHC plan assessment on 14 June 2023.

What should have happened

EHC Plan

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 are needed to meet them.

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 comes from 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 decide 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”; and completed as soon as practicable;
    • the whole process from the point when a person asks for an assessment until the Council issues the final EHC Plan 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

11. 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.

Suitable education

12. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.

What happened

13. The Council agreed to complete an assessment on 25 July 2023. The Council accepts that over the next few months it delayed in completing the assessment. The Council says this was because of a national shortage of Educational Psychologists (EPs).
14. The Council accepts it did not update Ms C about the progress of the assessment until 16 November after she received a first stage response to her complaint. In the first stage complaint response it explained the delay was because of a national shortage of EPs and that it had a priority order for assigning EPs. The Council agreed to look at other provision for X within the school.
15. Ms C was unhappy with the response and escalated the complaint to Stage 2. The Council’s stage 2 complaint response accepted X’s mental health had worsened and agreed extra support for her mental health and education. The Council also agreed to refer X for a sensory assessment, regularly update Ms C and pay Ms C a financial remedy once it knew the result of the EHC assessment. The Council assigned an EP on 26 March and the EP report was completed on 28 May.
16. The Council updated Ms C monthly until 20 June when it decided X was entitled to an EHC plan.
17. In response to my enquiries the Council says at the time of the complaint it prioritised Looked after Children or children that were in transition years to get EPs. It says it now has the benefit of extra funding which will allow it to clear its backlog in the next six months. It has the following priority categories,
    • Child Looked After/Special Guardianship Order
    • On a child protection plan
    • Who are not in education, employment or training/have no educational setting
    • With less than 35% attendance
    • Those attending Alternative Provision
    • Permanently excluded
    • Phase transition years
18. The Council says it will communicate the plan to families and schools by the end of the 2024 academic year.

Is there fault causing injustice?

19. The Council decided to assess X for an EHC plan within six weeks. This is within the statutory guidance. However the Council did not issue the EHC plan for X within 20 weeks or provide regular updates. The Council should have issued a draft EHC plan by 2 October 2023 and a final EHC plan by 1 November. The Council delayed by nearly 9 months. The Council in its response to the complaint has accepted it has delayed and explained this was because of the lack of available Educational Psychologists. The Ombudsman makes findings of fault where a Council fails to provide a service, regardless of the reasons for the service failure. Therefore while I accept the reasons for the delay, this is fault.
20. The delay has caused frustration and worry for X’s family and caused concern that X was not receiving the support she needed. It also caused Ms C time and trouble as she had to make formal complaints to receive updates.
21. Although the Council responded to Ms C’s complaint quickly it did not follow up on all the agreed actions one of which was a request for a sensory assessment. This remains outstanding. This is fault.
22. I welcome the early acceptance of fault by the Council however the faults I have identified caused Ms C added time, trouble, and frustration which the Council has not yet remedied.
23. The Council uses a prioritisation system when allocating EPs due to the lack of availability of EPs. This is not fault. However both prioritisations have no capacity for discretion and exceptional circumstances. In X’s case on balance I do not consider the circumstances would be “exceptional” to result in the early allocation of an EP, I therefore do not consider the Council’s prioritisation has caused X injustice. However I would suggest it considers reviewing the current prioritisation to include discretion for exceptional circumstances.
24. The Ombudsman can only challenge a professional judgement where there is procedural fault. The Council has provided evidence that it properly considered and supported X with alternative education. However because of X’s mental health difficulties this was not full time. I have found no procedural fault in how it reached this decision and therefore do not intend to consider this element of the complaint further.

Back to top

Agreed action

25. I have found fault in the actions of the Council which caused X and Ms C injustice. The Council says a national shortage of EPs caused delays in the assessment process. It says it has taken several steps to improve services. As these actions are current I have made no service improvement recommendations for this part of the complaint.
26. I consider and the Council has agreed to the actions below to remedy the personal injustice caused to Ms C and X and to improve future practice.
27. Within one month of the final decision the Council will:-
    • apologise to Ms C for the distress caused by delay, lack of communication and faults in the complaint responses;
    • pay Ms C £850 to recognise the distress, frustration and uncertainty caused to her and X by the Council’s failure to issue 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 on 1 November 2023, until the date it issued the final plan on 18 July 2024;
    • make a referral for a sensory assessment for X. If this is no longer needed explain why.
28. Within three months of the final decision the Council will:-
    • remind staff of the importance of providing updates;
    • remind staff to complete agreed actions within complaint responses;
29. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

30. I have found fault in the Council’s actions which has caused Ms C, and X injustice. I have now completed my investigation and closed the complaint on the basis on the above agreed actions.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page