Summary: Ms X complained about the time taken by the Council to assess her child’s special educational needs and issue an Education, Health and Care plan. Ms X also complained about the standard of communication she received from the Council. As a result, Ms X’s child still does not have a final Education, Health and Care plan. We found the Council was at fault for delays in completing the assessment of her child’s needs and issuing a final Education, Health and Care plan. We also found the Council at fault for its level of communication with Ms X. To remedy the injustice caused the Council agreed to apologise, make payments to Ms X to recognise the delays and distress caused, issue the child with a final Education, Health and Care plan and reimburse Ms X for the private Educational Psychologist report she paid for.

The complaint

1. Ms X complains the Council:
• Delayed in carrying out an Education, Health and Care needs assessment of her child.
• Did not tell her that if she commissioned a private Educational Psychologist report she would still have to wait until she reached the top of the Council’s Educational Psychologist que before the Council would progress the assessment.

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The Ombudsman’s role and powers

2. 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)
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)

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How I considered this complaint

4. As part of this investigation I considered the information provided by Ms X and the Council. I discussed the complaint with Ms X over the telephone. I sent a draft of this decision to Ms X and the Council for comments.
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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What I found

Law and guidance

6. 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. 
7. 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.
• 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 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);
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC plan and express a preference for an educational placement.
8. 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

9. Ms X’s child Y attends nursery. In July 2023, Y’s nursery asked the Council to carry out an EHC needs assessment for Y. The Council agreed to carry out the assessment.
10. In October 2023, Ms X chased up the Council as it had not sought advice from the professionals including an EP. Ms X said her caseworker told her an EP would not be available until 2024. As a result, Ms X asked the Council to use a private EP. Ms X said her caseworker told her she could get a private EP report which the Council may be able to use.
11. In November 2023, Ms X sent the Council a private EP report she had paid for.
12. Ms X also made a formal complaint to the Council on 27 November 2023. Ms X complained the Council did not get an EP report with the timeframe it should have and the Council had not told her whether it could use a private EP report. Ms X also complained about the level of communication she had received from her caseworker and that the Council was not going to issue Y’s final EHC plan within 20 weeks of the request to assess Y.
13. In early December 2023, the Council responded to Ms X’s complaint. The Council said it recognised there were delays completing EP assessments. The Council said it was recruiting more EP’s and more full time staff in the Special Educational Needs team as well as developing an approach for virtual assessments. The Council said it could not give Ms X an accurate timeframe for when it could assign Y an EP and signposted her to the Ombudsman if she was not satisfied.
14. Ms X attempted to contact her caseworker several times in December 2023 as she sent them the private EP report she commissioned. In early January 2024, Ms X’s caseworker told her they were no longer responsible for the case and it had been passed to another staff member.
15. Ms X spoke with her new caseworker on 3 January 2024 who gave her a timeframe for completing the EHC needs assessment. They also told Ms X the Council’s EP would look at her private EP report to see if the Council could accept this.
16. In early February 2024, Ms X’s caseworker told her she had sent advice requests to heath and social care and was waiting for these to come back before writing the draft report for Y.
17. In mid-February 2024, Ms X chased the Council for an update with Y’s EHC needs assessment. Ms X’s caseworker responded and told her the Council accepted Ms X’s private EP report. The caseworker also said they could not start to write Y’s needs assessment report until Y reached the top of the que for a Council EP. However when Y reached the top of the que she would not need to wait 6 weeks for the Council to complete the EP assessment.
18. Ms X complained to the Ombudsman in February 2024. In May 2024 the Council issued a draft EHC plan for Y.

Analysis

Delays in completing Y’s EHC needs assessment and issuing a final EHC plan

19. The Council was at fault for delays in completing its assessment of Y’s EHC needs. The Council received the request to assess Y in July 2023. The Council should have issued a final EHC plan for Y by the end of November 2023.
20. The delays initially were due to the Council having a shortage of EP’s. I cannot see what action the Council took to find an alternative EP for Y. This could have included asking an independent EP or approaching other councils, as it knew it would not be able to allocate an EP to Y to meet the statutory timescale for carrying out the EHC needs assessment. This was fault.
21. Y still does not have a final EHC plan, so is not getting any support with her special education needs. Ms X also does not know what support Y should be receiving and has had her appeal rights delayed. Ms X said the Council told her it would name a mainstream school in Y’s EHC plan as there are no special school places, so Ms X has not been able to challenge this as she has no final plan to appeal.
22. In cases where there have been delays issuing an EHC plan because of a shortage of EP’s, we recommend £100 per month from when the final plan should have been issued until the actual date the Council issues a plan. In this case the Council should have issued a final EHC plan in late November 2023.
23. Normally we would ask the Council to make service improvements these situations, however we have done this in other similar cases. The Council told us it has a plan to recruit more full time staff in its Special Educational Needs team, recruit more EP’s and implement virtual assessments to address these delays. In light of this I have not made a service improvement recommendation.

Communication with Ms X

24. After the Council agreed to assess Y’s needs, it is not clear whether Ms X was kept updated with the process. This was fault. Ms X made several attempts to contact her caseworker at the time.
25. When Ms X discussed getting a private EP report, the Council should have told her that she would still need to wait until Y got to the top of the que for a Council EP before the Council would write Y’s needs assessment report. Failure to do so was fault. Once Ms X got her own independent EP report, she sent this to the Council in late November 2023. It was not until February 2024 that the Council told her she would have to wait until she reached the top of the Council’s EP que for Y’s case to be progressed despite the Council accepting the private EP report Ms X sent.
26. Had the Council initially explained to Ms X the extent of the delays around getting a Council EP and told her that getting a private EP report would not move Y up the que, the Council could have better managed Ms X’s expectations. Ms X may also not have paid for a private EP report. Where a complainant pays for a private EP report and the Council accepts this instead of commissioning its own EP report we should ask the Council to reimburse the family for the cost of the EP report. In this case Ms X paid £875 for a private EP report.

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Agreed action

27. Within one month of my final decision the Council agreed to carry out the following:
1. Provide Ms X with a written apology for the above faults.
2. Issue Y with a final EHC plan.
3. Pay Ms X £700 for the delays in issuing Y with a final EHC plan. In coming to this figure I have considered the Ombudsman’s guidance on remedies, specifically our guidance on remedying cases where delays in issuing an EHC plan were caused by a shortage of EP’s.
4. Pay Ms X £200 to acknowledge the distress, time and trouble she experienced pursuing this matter with the Council.
5. Refund Ms X £875 for the EP report she paid for.
6. Consider what steps it could take to ensure parents are kept updated about any delays completing an EHC needs assessment and delays around getting an EP assessment.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation and found the Council was at fault and this caused injustice to Ms X and Y. The Council has agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman