Summary: Ms X complained the Council delayed obtaining an Educational Psychology report as part of her child’s Education, Health and Care needs assessment, which in turn delayed the assessment process. We found the Council was at fault for delays and poor communication. This caused the family distress, which the Council will apologise for and provide a suitable financial remedy.

The complaint

1. Ms X complained the Council delayed obtaining an Educational Psychology (EP) report as part of her child, Z’s, Education, Health and Care (EHC) needs assessment, which in turn delayed the assessment process. Ms X said the Council accepted it was at fault but did nothing to address the problem, ignoring Z’s needs.
2. Ms X said it took the Council a year to issue Z’s final EHC plan when it should have been straightforward, as nothing was contested. She also complained the Council did not respond to her communications and did not keep her updated. This caused her frustration.

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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. 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) 
5. 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)
6. 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

7. As part of the investigation, I considered the complaint and the information Ms X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. Ms 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

Special Educational Needs

10. A child or young person with special educational needs may have an 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. 
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 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 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).

12. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an EP; 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

13. Those consulted have a maximum of six weeks to provide the advice. 

What happened

14. I have summarised below some key events leading to Ms X’s complaint. This is not intended to be a detailed account of what took place.
15. Ms X asked the Council for an EHC needs assessment on 19 October 2023.
16. The Council agreed to carry out on EHC needs assessment on 28 November 2023.
17. Ms X emailed the Council on 6 March 2024 asking where Z was in the process, and for a timeframe.
18. The Council replied on 11 March. It said it was waiting for an EP to see Z, and there are significant delays securing EP advice due to capacity issues within the EP team. It said the EP team was trying to recruit agency staff, but the impact was variable, so it was not possible to give a timescale. It said the EP team was working in date order.
19. Ms X complained to the Council on 19 March. She said it was 22 weeks since she asked for an EHC needs assessment, and the EP advice had still not arrived. She spoke to the SEN team, but they could not give a timescale due to staff shortages. Ms X said this is not a good enough excuse. She asked what the Council was doing while Z struggled in mainstream school.
20. The Council sent its stage one complaint response on 21 March. It apologised Ms X had not yet received a decision or draft plan, in line with SEND regulations. It said this was because Z awaited an EP assessment. It said it cannot provide a timeframe; it could only explain the reasons for the delay. It said there was an unprecedented increase in requests for EHC needs assessments, increasing the demand for EP advice, but there is a national EP workforce shortage recognised by the Department for Education (DfE). It said the EP team was working to maximise capacity, and had more resources for associate or stand-in EPs. They also carry out virtual assessments so they can use EPs from around the country.
21. The Council said it was completing assessments in date order, giving reasonable preference to children in key transition years or looked after children. It said it would update Ms X every four weeks. It also said the school SEND team could support Z’s low attendance while it completes the assessment.
22. Ms X asked to escalate her complaint. She said staff shortages was not a good enough reason for the Council to act unlawfully. She said it had now been 27 weeks since she requested an assessment, and they still did not have the EP advice.
23. The Council sent its stage two complaint response on 13 May. It said the stage one response gave an accurate account of the current context of the problems with EP workforce shortages. It said the workforce was strengthened with associate and assistant EP in line with recommendations from the DfE. The Council said it has a rolling advert for EP recruitment, but this has not been enough to meet demand. It said it would assign Z’s assessment to an EP during the current school term. It apologised for not meeting the timescale for Z’s assessment, and for the frustration this caused.
24. The Council allocated an EP on 20 May 2024.
25. The Council updated Ms X on 1 July 2024. It said it would decide whether to issue an EHC Plan for Z once it had all the reports. It said it was experiencing very high levels of demand.
26. Ms X contacted the Council on 3 July. She asked when the Council would send her the EP report.
27. The Council received the EP’s advice on 4 July 2024.
28. An SEN support worker chased the Council for an update on Ms X’s behalf on 29 July.
29. The Council apologised for the difficulty Ms X had contacting its casework team. It agreed it did not meet communication standards it aspired to, and recognised the frustration this caused. The Council agreed it should issue an EHC Plan for Z, and said it would complete a draft EHC Plan by 9 August 2024.
30. The Council issued Z’s draft EHC Plan on 9 August 2024.
31. The Council confirmed Ms X’s chosen school offered Z a place on 27 September 2024. It said it would seek to agree the placement without going through the usual panel process to avoid more delays.
32. Ms X chased the Council for an update on 3 October.
33. The Council responded on 4 October. It confirmed it approved the school placement and would complete Z’s EHC Plan.
34. The Council issued Z’s final EHC Plan on 11 October 2024.

My investigation

35. Ms X told me Z could not attend mainstream school, and this got progressively harder due to their anxiety. Z was without education for a year due to the Council’s delays issuing the final EHC Plan. Ms X asked for alternative provision due to Z’s medical needs, but the Council refused. Ms X has made a separate complaint to the Council about this.
36. Ms X said she complained to us because although the Council admitted it was at fault it refused to correct things. She said being short staffed is not a good enough reason to ignore the needs of a child.
37. Ms X told me she felt ignored by the Council and it rarely replied to emails or calls.
38. The Council told me Z’s assessment did not proceed in line with statutory timescales. That was due to a rise in EHC assessments and a shortage of EPs. It apologised to Ms X for the frustration the delay caused, but it could not issue Z’s EHC plan without this advice.
39. The Council considered assessments in date order, and gave reasonable preference to children in key transition years or children looked after by the Council. It considered this was the fairest approach, and it was backed by the DfE.
40. Since summer 2024, the Council sourced more capacity and widened the priority groups to include more vulnerabilities in addition to SEN.
41. Although the Council could not prioritise Z’s assessment, it said it did not ignore their needs. After Ms X’s request for an EHC needs assessment, the Council’s attendance service signposted her and the school to support.
42. The Council said Ms X did not get in touch after November 2023, but the SEN caseworker responded promptly when Ms X asked for an update in March 2024.
43. The Council said it received the EP report on 4 July 2024. Unfortunately, it did not respond to Ms X’s questions on this until 29 July, which it apologised for. However, it said the SEN caseworker was in regular contact with Ms X until the Council issued the EHC Plan on 11 October 2024.
44. The Council acknowledged it should have updated Ms X while she waited for it to allocate an EP, and following receipt of the EPs advice. It apologised for the uncertainty this caused and offered to pay Ms X £150 in recognition of this. It also offered to pay £700 for the delay issuing Z’s final EHC Plan.

Analysis

45. It is clear from the available evidence that there were significant delays in this case.
46. In response to Ms X’s complaint, the Council accepted it did not progress Z’s EHC needs assessment in line with SEND regulations. It explained this was because of the lack of available EPs. The Ombudsman makes findings of fault where a Council fails to provide a service, regardless of the reasons for the service failure. So, while I recognise the reasons for the delay, this is fault.
47. Mrs X felt the Council did not address the delay with EP advice and ignored Z’s needs. The Ombudsman is aware of the national shortage of EPs which is impacting the Council’s ability to complete EHC Plans on time. I found the Council decided to prioritise EP assessments for some groups of children while it tried to increase staff and resources. I did not find the Council ignored Z’s needs, and the Ombudsman cannot question an operational decision of the Council where that decision was properly considered and reasoned.
48. The Council should have issued Z’s final EHC Plan within twenty weeks of Ms X’s request for an assessment, which was by 7 March 2024. It did not do so until 11 October 2024. That was a delay of about 7 months. This caused Ms X and her family uncertainty and distress which the Council should remedy. The Council’s offer of £700 for this injustice is consistent with the Ombudsman’s remedy guidance, which recommends £100 per month for delays of this kind.
49. In the Council’s stage one complaint response, it said it would update Ms X every four weeks. I did not see evidence it did that. During my investigation, the Council accepted it should have updated Ms X while she waited for it to allocate an EP, and following receipt of the EPs advice. It apologised for the uncertainty this caused. I found that while the case officer usually responded to Ms X promptly, that was not always the case, and on some occasions Ms X had to call or chase the Council several times to get a response. I found the Council was at fault for poor communication. This caused Ms X avoidable frustration and uncertainty. I am satisfied the Council’s offer of £150 for this injustice is consistent with the Ombudsman’s remedy guidance.
50. The Council is taking steps to try and recruit more EP staff and increase capacity. I therefore do not make any service improvement recommendations.

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Agreed action

51. Within four weeks of my final decision, the Council will:
• Apologise to Ms X for the delays in the EHC needs assessment process, in issuing of the final EHC Plan, and the poor communication. This apology should be in accordance with the Ombudsman’s guidance Making an effective apology.
• Pay Ms X £700 in recognition of the uncertainty and distress caused by the delay in finalising the EHC Plan.
• Pay Ms X £150 to recognise the avoidable frustration its poor communication caused.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I completed my investigation. The Council was at fault for delays issuing the final EHC Plan, and for poor communication. This caused Ms X distress. The Council offered a suitable financial remedy and has agreed to apologise.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman