Summary: We have found fault (service failure) with the Council for the delay in completing the statutory Education, Health and Care Plan assessment process. This caused Miss X the injustice of uncertainty and frustration at the delay. The Council has agreed to remedy the injustice with an apology and a symbolic payment.

The complaint

1. Miss X complained about delays to her daughter’s Education, Health and Care (EHC) Plan process. She says this left her daughter without the provision she needs.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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. I have considered Miss X’s complaint and have spoken to her about it.
8. I have also considered the Council’s response to Miss X and to my enquiries.
9. Miss 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

Law and guidance

Statutory timescales

10. A council should issue a decision about whether it will agree to issue a plan or not within 16 weeks, and if it agrees to issue a plan, it has a further four weeks to do so (a total of 20 weeks).

National shortage of Educational Psychologists (EP)

11. The shortage of EPs is a national issue and reported widely in the press since 2021. Recent analysis by Schools Week estimated there are now 360 fewer full-time equivalent educational psychologists compared with 2010. This contrast with 114,500 initial requests for EHC plans in 2022, up by 23 per cent on 2021.
12. The Local Government and Social Care Ombudsman produced guidance on this issue; ‘National shortage of educational psychologists and our remedies’.
13. This guidance sets out a precise, consistent and a proportionate way to use our powers. We would still hold councils to account for ‘service failure’ and not overlook the efforts they have already made. As it is a national issue that cannot be resolved quickly given the time it takes to train and recruit EPs, we may see this issue for some time, possibly years.
14. In our decision statements and reports, we should find fault (service failure) for the delay in completing the statutory assessment process causing injustice (uncertainty and frustration at the delay) with a remedy of a symbolic payment. By doing it this way we are consistent, and we can remedy each case based on the stage it has reached in the EHC needs assessment.
15. The remedy would generally be £100 for each month outside the statutory timescales which continues up to the point the complainant receives a right of appeal, reference or review - whether this is via a refusal to issue a plan or the issuing of a final plan. The £100 a month is a symbolic payment to recognise the frustration and uncertainty caused to the family by the delay. It is not to remedy any loss of special education support to the child as they do not yet have an EHC plan.

What happened

16. Miss X’s daughter, Y has SEND. In January 2023, the Council decided not to carry out an EHC Needs Assessment for Y. Miss X appealed the Council’s decision in March that year. In May, the Council conceded and agreed to assess Y. It notified the parents of its decision in August 2023.
17. In September 2023, Y started secondary school. Miss X said that Y struggled with the transition and without an EHC Plan in place, she missed out on the support she needed.
18. In early 2024, Miss X complained to the Council about the delay in allocating an Educational Psychologist (EP) to complete Y’s assessment.
19. In its response, the Council acknowledged and apologised for the delay. It explained there was a national shortage of EPs that was affecting its ability to make timely decisions about whether children need an EHC Plan.
20. It assured Miss X that it was commissioning additional EPs and would hopefully allocate Y one by the end of March 2024. It confirmed that Y’s school could seek support from the SEND Hub in the interim period.
21. In response to my enquiries, the Council highlighted that no request was made to the SEND Hub. It said this suggested the school did not feel additional support or assistance was required.
22. The Council received Y’s EP report in March 2024. The Council decided to issue Y an EHC Plan.
23. At the time of Miss X’s complaint to the Ombudsman (June 2024), the Council had not issued a draft EHC Plan.

Update

24. The Council sent a draft EHC Plan to Miss X in July 2024 and issued Y’s final EHC Plan in October 2024.

My findings

25. There were delays in Y’s EHC Plan process.

Delay notifying Miss X of the decision to assess

26. The Council decided to carry out an EHC Needs Assessment in May 2023 but did not notify Miss X of this decision until August 2023. This delay of 15 weeks was fault and delayed Miss X’s right of appeal causing her distress. The situation was made worse as Y was starting secondary school in September. Miss X said her transition was more difficult without knowing whether she would have an EHC Plan.
27. The Council has agreed to pay Miss X £250 for the avoidable distress and uncertainty caused by the delay in notifying her of its decision to assess.

Delay during EHC Needs Assessment caused by EP shortage

28. If completed in line with the statutory timescales, there should have been a maximum of 20 weeks between when the Council issued its decision to assess (17 August 2023), and the issuing of the final EHC Plan. This would have been 4 January 2024.
29. The Council issued the final EHC Plan on 4 October 2024, 10 months late.
30. We recognise the national shortage of EPs and the effect this can have on the ability of councils to meet the EHC Plan statutory timescales.
31. I am satisfied the Council tried to source an EP but was unsuccessful. I have therefore found fault because of ‘service failure’ rather than maladministration for the delay. The Council has agreed to pay Miss X £1000 in recognition of the 10 month delay.

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Agreed action

32. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Miss X for the delays in her daughter’s EHC Plan process.
2. Pay Miss X £250 in recognition of the avoidable distress caused by the delay in notifying her of its decision to assess Y.
3. Pay Miss X £1000 in recognition of the unavoidable delays caused by the shortage of EPs.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation. I have found fault with the Council for the delays in Miss X’s daughter’s EHC Plan process.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman