Summary: Ms X complains about the Council’s delay in responding to her request for an Education Health and Care Plan Needs Assessment for her child causing distress and uncertainty. We found there was service failure by the Council due to the delay in responding to Ms X’s request. We have recommended a suitable remedy in this case and so have completed our investigation.

The complaint

1. The complainant who I shall refer to here as Ms X, complains the Council failed to respond to her request for an Education, Health and Care Plan Needs Assessment (EHC needs assessment) for her child Y. Ms X says the Council also failed to carry out the needs assessment within its stated timescales.
2. Ms X says this has caused distress to Y and impacted onto their mental health. It has also had a detrimental effect onto the family because of their concerns about Y.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. 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 and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
4. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended). 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.
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)

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How I considered this complaint

6. I have read the information provided by Ms X and spoken to her about the complaint. I considered the Council’s response to Ms X’s complaint.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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.

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What I found

What should have happened

9. Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (code of practice) sets out the process for carrying out EHC assessments and producing Education Health and Care Plans ( EHC Plan). The code of practice is based on the Children and Families Act 2014 and the Special Educational Needs Regulations 2014 (SEND regulations). 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.
10. As part of the EHC needs assessment councils must gather advice from relevant professionals. 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).
11. Those consulted have six weeks to provide the advice.
12. Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made in accordance with an EHC Plan, the local authority must prepare a plan. Where a local authority decides it is necessary to issue an EHC Plan, it must notify the child’s parent or the young person and give the reasons for its decision. The local authority should ensure it allows enough time to prepare the draft plan and complete the remaining steps in the process within the 20-week overall time limit within which it must issue the finalised EHC Plan.
13. A parent or young person can appeal certain decisions about Special Educational Needs to the SEND Tribunal. This includes a council’s decision to refuse to carry out an EHC needs assessment or to refuse to assess. It also includes the Council’s decision to refuse to issue an EHC Plan.

What happened

14. Ms X applied to the Council for an EHC Plan needs assessment for Y in August 2022 through its EHC Hub. Ms X says she received notification of dates the Council would make decisions by including issuing a final EHC Plan by 4 January 2023 if that was the outcome of the needs assessment.
15. Ms X complained to the Council in January 2023 as she had not received any contact from the Council about her request. Ms X explained the lack of contact and delay in carrying out an EHC plan assessment was having a detrimental impact onto Y’s mental health.
16. The Council responded in February 2023. It apologised for the lack of updates due to staff illness and for the delay in carrying out the EHC plan needs assessment. The Council explained it could not complete an assessment until it had all the advice needed and it faced a challenge due a shortage of EP’s. The Council said it was trying to address this in its area and had put several measures in place.
17. The Council told Ms X it would contact her once it had allocated an EP to Y and inform her of the expected date for the assessment to be completed. It would then try to progress Y’s case as quickly as possible to decide whether to issue a draft EHC plan or not based on the assessment.
18. Ms X confirmed that Y’s case was recently allocated to an EP who has now visited Y.

Analysis

19. Under the code of practice, referred to in paragraph nine the Council is required to tell parents about whether it will complete a needs assessment within six weeks of receiving a request. Ms X requested a needs assessment on 18 August 2022. The Council did not contact Ms X about the needs assessment until her complaint in February 2023. This is well beyond the six-week timescale to tell parents whether it will complete a needs assessment as set out in the code of practice.
20. The Council explained it was due to staff illness affecting its communications and because of lack of EP’s when carrying out EHC Plan needs assessments. It is unfortunate that these reasons affected the Council’s ability to carry out its duties which I consider amount to service failure. The Council has apologised to Ms X for the delays caused by this service failure and is taking measures to deal with the shortage of EP’s. This is suitable action for it to take.
21. But the delay in responding to Ms X about whether it will carry out a needs assessment has caused an injustice to Ms X and Y. This is through distress and uncertainty over whether the Council would agree to a needs assessment, the outcome of the assessment if agreed and whether the Council will issue an EHC Plan. Ms X has also been caused time and trouble in pursuing her complaint to the Council. So, I recommend the Council should provide a remedy to Ms X and Y by making Ms X a payment of £150 to recognise the distress and uncertainty caused and her time and trouble in pursuing the matter.
22. I would also recommend that now Y has been allocated an EP the Council makes its decision on Ms X’s request without any further delay. Once the Council has issued its decision then it is open to Ms X to exercise her right of appeal to the SEND Tribunal should the Council decide not to carry out a needs assessment or to issue an EHC Plan. I consider it reasonable to expect Ms X to exercise her right of appeal. This is because the SEND Tribunal can consider the facts of the case and whether the Council should carry out a needs assessment on Y or issue an EHC Plan.

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Agreed action

23. To remedy the injustice caused to Ms X by the Council’s delay in responding to Ms X’s request to carrying out an EHC Plan needs assessment the Council will:
• Pay Ms X £150 in recognition of the distress and uncertainty caused to her and Y by the Council’s delay and her time and trouble in pursuing the matter.
• Issue its decision on the needs assessment request without any further delay.
24. The Council should provide us with evidence it has complied with the above actions within a month of my final decision.

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Final decision

25. I am completing my investigation. I have found evidence of service failure by the Council and have recommended a suitable remedy for the injustice caused in this case.

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Investigator's decision on behalf of the Ombudsman