Summary: Mrs B complained the Council failed to complete an Education, Health and Care needs assessment within the statutory timeframe. We have found the Council at fault for the delay in completing the assessment and issuing the final Education, Health and Care Plan which has caused distress and frustration to Mrs B and her child. The Council has agreed to apologise and make a symbolic payment to remedy the injustice caused by the faults identified.

The complaint

1. Mrs B complained the Council failed to carry out an Education, Health and Care (EHC) needs assessment for her son, Y. Mrs B says this has caused unnecessary stress for Y and the rest of the family. Mrs B also says it has impacted Y’s ability to access education. Mrs B would like an apology and a symbolic payment to acknowledge the injustice caused by the delays.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

6. I discussed the complaint with Mrs B and considered the evidence she provided.
7. I made enquiries of the Council and considered its response.
8. Mrs B and the Council had an opportunity to comment on the draft decision. I considered any comments I received before making a final decision.

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What I found

Relevant Law and Guidance

EHC Plans

9. Children with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F sets out the child’s special educational provision and section I ‘names’ the school or type of school the child will attend.
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:
• where a council receives a request for an EHC assessment it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist, social care and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC Plan after an assessment, it should prepare a draft EHC Plan. The council should send the draft Plan to the child’s parent or the young person and give them at least 15 days to comment. It should also send the Plan to schools that may be able to accept the child or young person and meet their needs. This should take around six weeks; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC Plan.
11. There is a right of appeal to the SEND (Special Educational Needs and Disabilities) Tribunal about the educational provision and placement named in a child’s EHC Plan. This appeal right is only engaged once the final EHC Plan has been issued.

What Happened

12. Y’s school submitted a request for an assessment of their Education, Health and Care needs in October 2023. The Council responded in November, within six weeks, and agreed to carry out the assessment. Based on the statutory timeframes the Council should have completed the assessment and issued the final EHC Plan by 27 February 2024.
13. Due to the national shortage of Educational Psychologists, Y’s educational psychology assessment report was not issued until mid-April 2024. The Council issued a draft EHC Plan at the end of May 2024 and a final EHC Plan was issued in June 2024.

Educational Psychologists

14. In response to our investigation the Council told us it was affected by the national shortage of educational psychologists (EP’s). This is an issue for many Councils as the number of EP’s has declined and the number of EHC needs assessment requests has increased dramatically.
15. The Council has told us that to manage demand it:
• Is actively recruiting EP’s.
• Has adapted EP working to include overtime and associate (independent) options.
• Has completed a service re-design.
• Has commissioned EP services from the independent sector to decrease the assessment delays as much as possible.

My Findings

16. There was a four month delay in the Council issuing Y’s final EHC Plan. This delay caused distress, frustration and uncertainty to Y and their family.
17. The Council has a suitable plan in place and is taking active steps to address the impact of the national shortage of educational psychologists.

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Agreed action

18. Within one month of the final decision the Council will:
• Issue an apology to Mrs B for the distress and uncertainty caused by the delay in completing Y’s EHC needs assessment and issuing the final EHC Plan. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
19. Make a symbolic payment of £400 to Mrs B to recognise the distress and frustration caused by the delay in issuing Y’s final EHC Plan. This is calculated at £100 per month of delay in line with our Guidance on Remedies.
20. The Council should provide us with evidence it has complied with the above actions.

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Final decision

21. We uphold this complaint. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman