The Ombudsman's final decision
Summary: Mr X complains the Council failed to comply with statutory timescales during the EHCP process for his son, Y. Mr X also complains about the failure to deliver provision as set out in Y’s EHCP. We have concluded our investigation having made a finding of fault. The Council failed to issue Y’s EHCP within statutory timescales, and failed to deliver all SALT sessions that Y should have received, if not for delay. The Ombudsman is aware of a national shortage of Educational Psychologists that have impacted upon events described in this complaint, and our recommendations have been agreed in line with our standardised approach.
The complaint
Mr X complains the Council failed to comply with statutory timescales during the EHCP process for his son, Y. Mr X also complains the Council failed to deliver provision set out in Y’s EHCP. Mr X would like the Council to improve its remedy and to reimburse SALT sessions that were sourced and paid for privately. Mr X would also like to ensure there is learning by the Council to ensure such events do not occur again in the future.
The Ombudsman’s role and powers
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) 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.
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)
What I have not investigated I have not investigated any complaint relating to input or the contents of the EHCP. This includes any complaint about the failure to properly assess, or any complaint about a reduction in the level of support. These matters are appealable, and it would have been reasonable for Mr X to have appealed.
How I considered this complaint
I liaised with Mr X and considered the information he provided. As part of my investigation, I also made enquiries to the Council and considered the information it provided in response. Mr X and the Council had an opportunity to comment on my draft decision and I considered any comments submitted before making a final decision.
What I found
Relevant law and guidance Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42) 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 Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says: where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment; 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; and 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.
As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes: the child’s education placement; medical advice and information from health care professionals involved with the child; and psychological advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice.
When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan (SEND Regulations, Regulation 13(1)) There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
What happened I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.
In April 2022, Mr X submitted a request for an Education, Health and Care Needs Assessment.
In June 2022 an agreement to assess was made, and a request for professional advice was submitted. Professional advice was due in August 2022.
In December 2022, the Draft EHCP was issued, and in January 2023, the Final EHCP issued.
In May 2023, an annual review meeting was held and in June 2023, the 1st proposed amendment to the Final EHCP issued. Later in July 2023, the Final amended EHCP was issued.
Analysis Delays in issuing Y’s EHCP The Council should have issued Y’s EHCP plan by September 2022, which is twenty weeks after a request to assess was made. The Council did not issue the Final EHCP until January 2023. This is four months longer than the law allows. Failure to issue Y's EHCP within statutory timescales is fault.
I consider the delay in issuing the final EHC Plan did have an impact on Y. It meant he missed out on receiving the full tailored support set out in the Plan for the period beginning September 2022, when the Plan should have been issued, to January 2023, when the Final Plan was issued. This caused uncertainty and distress for Y. This also caused distress, uncertainty and frustration for Mr X and the family.
Delay in this complaint can be attributed to the delay in the professional advice the Council sought as part of Y’s assessment, and I have addressed this point in the section immediately below.
Educational Psychologists wider impact In response to the lack of Educational Psychologists, the Council has increased its capacity by hiring Educational Psychologist assistants to support its Educational Psychologists with assessments and to increase capacity. The Council notes successful feedback.
The Council has also engaged the services of private Educational Psychologists to help address its backlog. The Council has also re-directed the work of its Educational Psychologists to assist with delays.
The Council has reports that all delayed assessments within the EP service have now been allocated to an Educational Psychologist.
I am satisfied the Council has identified the cause of its delays in producing EHC Plans and put in place suitable policies and measures to tackle this backlog. The Council’s actions are already showing an improvement in its timeliness in producing EHC Plans and at tackling its backlog. I do not consider further service improvements by the Ombudsman would add to the Council’s response to this matter.
SALT sessions Y’s EHCP set out that he is to receive 6 x 45 minute sessions per term. This would mean that from the period Y’s EHCP should have been issued within statutory timescales, he should have received 18 sessions over the period of the academic year.
From the evidence available, I can see that Y had one session in March 2023, and seven sessions between May 2023 - June 2023, there is a shortfall of 10 SALT sessions which should have otherwise been delivered to Y during the academic year. This is fault by the Council.
I recognise from comments made by Mr X that the family has paid for private SALT sessions to cover the sessions that should have otherwise been provided by the Council, I therefore consider that Y has not been caused a significant injustice, but this in only because Mr X and the family have sourced and paid for sessions privately. I therefore recognise that Mr X himself has incurred the injustice, having paid for sessions privately, and been subjected to the inconvenience and frustration of having to do so.
Agreed action
The Ombudsman is aware of the national shortages of Educational Psychologists and we have set out to standardise our approach to remedying injustice in light of this. In these circumstances, we recommend a payment of £100 for each month outside the statutory timescales.
Y’s Final EHCP should have been issued in September 2022 but was not issued until January 2023. The Council were delayed by four months and using our standardised approach as described in paragraph 28, I have arrived at an amount of £400.
Therefore, the Council has agreed to complete the following actions in order to remedy the injustice described in this decision: Pay Mr X an amount of £400 to acknowledge the distress and uncertainty caused to Y by the Council’s failure to issue his EHCP within statutory timescales. This remedy is calculated at £100 per month from the date the Council should have made this decision in September 2022 until January 2023.
Pay Mr X a further amount of £250 to acknowledge the distress, inconvenience and frustration imposed on him having to source and fund private SALT sessions, and for the distress and uncertainty caused as a result of delay in issuing Y’s EHCP.
The Council will review the costs incurred by Mr X and the family, and consider reimbursing for the SALT sessions sourced and paid for privately. Any reimbursement made by the Council will be to make up the shortfall of the 10 SALT sessions which it should have provided during the year.
The Council will provide Mr X and Y an apology. The apology will be made in line with our guidance on remedies.
The Council will complete action points a to d within one month of the Ombudsman’s final decision.
Final decision
I have concluded my investigation having made a finding of fault. The Council failed to issue Y’s EHCP within statutory timescales, and failed to deliver all SALT sessions that Y should have received, if not for delay. The Ombudsman is aware of a national shortage of Educational Psychologists that have impacted upon events described in this complaint, and our recommendations have been agreed in line with our standardised approach.
Investigator's decision on behalf of the Ombudsman