Summary: Mrs X complained about the Council’s handling of her child’s Education, Health and Care needs assessment. We found the Council at fault because there was a significant delay in securing the Educational Psychologist’s report needed for the assessment. In recognition of the distress caused by the delay, the Council agreed to make a symbolic payment of £500 to Mrs X.

The complaint

1. Mrs X complained about the Council’s delay in securing an Educational Psychologist’s report. This meant it failed to meet legal deadlines for deciding whether to issue, and issuing, an Education, Health and Care Plan for her child. (In this statement, Mrs X’s child is called ‘D’.)
2. Mrs X said the Council’s delay and failures meant D could not access school full time. This affected D’s education, mental health, and wellbeing. It also caused stress for the family and, with D not being in full time education, affected Mrs X financially.
3. Mrs X wanted the Council to commission and pay for an independent Educational Psychologist’s report to speed up its decision making.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. 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)
8. 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

9. I have:

• considered Mrs X’s written complaint and supporting information and offered to talk to Mrs X about the complaint;
• asked for and considered the Council’s comments and supporting information about the complaint;
• shared Council information with Mrs X; and
• shared a draft of this statement with Mrs X and the Council and considered any comments received before making a final decision.

Back to top

What I found

Background

10. A child or young person with special educational needs (‘SEN’) 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.
11. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the Special Educational Needs and Disability (‘SEND’) 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 carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.

12. 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). Those consulted have a maximum of six weeks to provide the advice. 
13. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.
14. There is a right of appeal to the SEND Tribunal against a decision that it is not necessary to issue an EHC Plan following an assessment.

What happened

15. Mrs X asked the Council to carry out an EHC needs assessment for D. Within six weeks, the Council told Mrs X it would assess D’s needs (see first bullet point to paragraph 11 of this statement). The Council also contacted professionals, including EP services, for advice within six weeks (see paragraph 12). However, no EP was appointed to D’s case.
16. Mrs X contacted the Council for updates on progress with D’s assessment. The Council told Mrs X no EP was yet dealing with D’s case. And, about 16 weeks after asking for an assessment, Mrs X formally complained to the Council. Mrs X said the Council was yet to appoint an EP to D’s case. So, it would not meet the 16 weeks legal timescale for deciding whether to issue an EHC Plan. Mrs X asked the Council to confirm it would now act to complete D’s assessment.
17. In response, the Council upheld Mrs X’s complaint and apologised for the delay in securing EP advice. It said there was a national shortage of EPs, which affected its ability to make timely decisions about EHC Plans. The Council said its plan for tackling the EP shortage included both national and international recruitment. It also had contracts with agencies to provide EP services and so increase the number of completed EP assessments to help reduce the backlog. The Council said it was working hard to secure EP reports but could not give Mrs X a firm date for appointing an EP to D’s case. However, its provisional timetable suggested it would be in about six weeks. Meanwhile, Mrs X’s EHC Caseworker would provide updates.
18. Mrs X continued with her complaint saying the Council could not excuse its failure to meet its legal duties because of staff shortages. Mrs X also gave the Council contact details for independent EPs. The Council replied saying it had apologised and explained what it was doing to address the national EP shortage. Further investigation of Mrs X’s complaint would not change or add to its earlier complaint response. The Council signposted Mrs X to the Ombudsman.

The Council’s comments to the Ombudsman

19. The Council said the delay in completing D’s assessment and deciding whether to issue an EHC Plan was due to the national shortage of EPs. It referred to the steps it was taking to deal with that issue, which included commissioning reports from agency EPs (see paragraph 17).
20. An EP had been appointed to D’s case and it had received the EP’s report within six weeks. It had later contacted Mrs X and said it would not issue an EHC Plan for D. It had then sent a formal decision letter to Mrs X, which included information about her right to appeal its decision to the SEND Tribunal.
21. The Council said during the EHC needs assessment, D’s school provided D with support. The support included timetable and other adjustments, interventions and strategies, various passes to help D, and people support, including from a teaching assistant during lessons. The Council accepted the latest attendance figure showed D was not accessing education full time at the school. However, D was accessing core curriculum subjects. The Council said suitable education had been offered to D during the EHC needs assessment.

Consideration

22. There was no dispute the Council failed to meet the legal timescale for deciding whether to issue an EHC Plan for D. Overall, the evidence showed that, rather than 16 weeks, it took the Council about 38 weeks to reach its decision. Within those 38 weeks, it took about 28 weeks for the Council to appoint an EP to D’s case. I found the delay in appointing an EP was due to the shortage of EPs and the demands on their time.
23. The EP completed their report on D’s case within six weeks. And, within three weeks of receiving that report, the Council sent Mrs X its decision letter, declining to issue an EHC Plan. I therefore saw no evidence of avoidable delay by the Council after it appointed an EP to D’s case.

24. We are aware there is a national shortage of EPs. If we are satisfied a council has put measures in place to mitigate the impact of that shortage on its services, we consider delay attributable to the lack of EP advice as service failure (see paragraph 4). Here, I was satisfied the Council was acting to address the impact of EP shortages on its services (see paragraph 17). I therefore found the delay in securing an EP report for D’s EHC needs assessment was a service failure. And this was the reason it took the Council about 22 weeks longer than it legally should have done to reach its decision on D’s assessment.

25. The evidence showed the Council’s delay in deciding not to issue an EHC Plan for D caused distress for Mrs X and her family. I therefore found the fault I identified at paragraph 24 caused injustice.

26. Mrs X also pointed to D’s reduced school attendance during the EHC needs assessment as causing injustice. The fact a child or young person cannot attend school does not necessarily provide evidence of council fault. Here, the Council’s position was that suitable educational provision was available to D during the assessment. And D’s school was providing extra support (see paragraph 21). Having considered the matter, I did not find the Council at fault or that delayed completion of D’s EHC needs assessment caused the injustice identified by Mrs X.

27. The Council decided not to issue an EHC Plan for D after Mrs X complained to us. So, the Council’s decision was not part of my investigation. And we would normally expect Mrs X to use her right to appeal to the SEND Tribunal should she wish to challenge that decision (see paragraphs 5, 6 and 14).

Back to top

Agreed action

28. I found fault causing injustice (see paragraphs 24 and 25). The Council had apologised to Mrs X (see paragraph 17). However, the apology did not adequately put right the injustice caused by the Council’s fault. To appropriately address the injustice, the Council agreed, within 20 working days of this statement, to make a symbolic payment of £500 to Mrs X. The payment was to recognise the distress caused by the Council’s delay in dealing with D’s EHC needs assessment.
29. The Council had explained how it was mitigating the impact of the national shortage of EPs on its services (see paragraph 17). So, I made no service improvement recommendations at this point.
30. In due course, the Council should provide us with evidence it has complied with paragraph28.

Back to top

Final decision

31. I completed my investigation, finding fault causing injustice, on the Council agreeing the action at paragraph 28.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman