The Ombudsman's final decision
Summary: The Council failed to carry out an Education, Health and Care Needs assessment for Mrs P’s child, Q, within the statutory timeframes. This caused distress, frustration and uncertainty to the family. We are satisfied with the service improvements the Council is carrying out to resolve this issue. The Council will apologise and make a payment to recognise the personal injustice to Mrs P and Q.
The complaint
The complainant, whom I shall refer to as Mrs P, complains the Council: failed to complete an EHC Needs Assessment for her son, Q, and issue an EHC Plan within statutory time limits; failed to allocate an educational psychologist to assess Q; and refused to allow Mrs P to pay for an independent educational psychologist report.
Mrs P said this has caused Q’s mental health to decline and caused distress to their family because the school does not have the right support in place.
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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I have considered the information Mrs P and the Council provided.
Mrs P and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.
What I found
Law and guidance EHC Plan A child or young person with special educational needs 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. 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.
Timeframes and process for EHC assessment 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).
Advice and Information for EHC needs assessments 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 Educational Psychologist (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.
Those consulted have a maximum of six weeks to provide the advice.
Independent educational psychologist reports The Council says it will accept parents’ independent educational psychologist reports. If the report covers all the necessary information, there will be no need for an Essex County Council educational psychologist to undertake a separate assessment. However, submission of an independent educational psychologist report will not move the assessment forward at the expense of other assessments. For example, if the assessment is 100 on the list and the independent report has been provided, that assessment cannot be progressed until it reaches the top of the list. The Council explained this is to ensure that cases are not prioritised based on a parents’ access to an independent educational psychologist which may create an unfair system.
What happened Q attends a mainstream school. Mrs P says Q is struggling and needs extra support.
On 24 July 2023, Mrs P asked the Council to complete an EHC needs assessment for Q. At the end of August, the Council told Mrs P it agreed to complete the assessment.
In September, Mrs P contacted the Council about the delay in educational psychologist reports. Mrs P asked if she could pay for a private independent educational psychologist report instead of waiting for the Council to complete this report.
The Council responded confirming the delay in allocating educational psychologists. The Council said it could not accept private educational psychologist reports as “they are often unfamiliar with its processes and requirements”.
In November, Mrs P sent a stage one complaint to the Council. She complained the Council had still not assigned an educational psychologist to complete a report. She also complained the Council had refused her request to pay for an independent educational psychologist report. Mrs P said that Q’s mental health was declining due to a lack of support in school.
The Council responded to Mrs P’s complaint two weeks later and acknowledged the timeframes for completion of assessments was more than 20 weeks. The Council said this was because the number of requests for assessments had risen sharply in recent years. The Council also said the recruitment and retention of educational psychologists had been a major challenge and this had contributed to the delays.
The Council said it was working to recruit educational psychologists and keep those already employed. The Council added that it was also developing its approach using ‘virtual assessments’ where possible and using independent educational psychologists.
The Council also said it had recently invested extra funding to expand the team by 46 full time staff members.
Mrs P was unhappy with the Council’s response and escalated this to a stage two complaint. She asked the Council to clarify its position on her request to pay for an independent educational psychologist report.
The Council responded the following day saying that it estimated it would take around 30 weeks to complete Q’s assessment. The Council also said that it could now accept independent educational psychologist assessments. However, it said this would not lead to the Council completing the EHC needs assessment quicker.
The Council assigned an educational psychologist to complete a report on 25 April 2024.
Analysis The Code sets out the statutory timeframes for completing an EHC needs assessment and issuing an EHC plan. We expect councils to follow these timeframes. We are likely to find fault where there are significant breaches of those timeframes.
The Council did not assign an educational psychologist to complete its part of the assessment until 39 weeks had passed. This was not in line with the statutory timeframes and the Council has already accepted fault for this. This has caused frustration, distress and uncertainty to Mrs P and Q.
If the Council decided through its EHC needs assessment that Q did require an EHC plan, the Council should have issued Q’s final EHC plan by 11 December 2023. This is currently over five months past the statutory deadline. The Council has already accepted fault for this. This has caused frustration, distress and uncertainty to Mrs P and Q Mrs P also complained the Council did not allow her to pay for an independent educational psychologist report. The Council at first told Mrs P that it could not accept private educational psychologist reports. However, it then changed its position to say that it would accept these, but this would not progress Q’s assessment any quicker. I accept that the Council providing Mrs P with conflicting information may have caused her further frustration. However, this is a decision the Council is entitled to make and so there is no fault here. Even if the Council had initially told Mrs P that she was able to pay for an independent educational psychologist assessment, this would not have resulted in Q’s assessment being completed sooner.
I recognise the Council has made service improvements to respond to the increased demand for EHC needs assessments and to manage the shortage of educational psychologists. I am satisfied with these service improvements and so will not recommend anything further here. However, the Council will provide a remedy for the personal injustice caused to Mrs P and Q.
Agreed action
Within one month of the final decision, the Council will: provide an apology to Mrs P and Q for the frustration, distress and uncertainty caused to them by the delay in issuing the EHC plan; and pay Mrs P £100 per month of delay from the statutory deadline of 11 December 2023 until the date the final EHC plan (or the letter stating a decision not to issue) is sent to Mrs P. This is to acknowledge the continued frustration, distress and uncertainty caused by the delay in deciding whether to issue an EHC plan.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation with a finding of fault causing injustice.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman