Summary: Ms X complains about Council delays in completing her son (Y’s) education, health, and care needs assessment and poor communication. We find the Council at fault. It should apologise to Ms X and make payments to her to reflect the uncertainty, frustration and distress caused by the delays and failure to keep her updated during the process.

The complaint

1. Ms X complains the Council:
1. Delayed completing her son (Y’s) education, health, and care (EHC) needs assessment. This has been mainly due to a delay in Y being assessed by its educational psychologist (EP).
2. Failed to keep her updated throughout the process and did not respond to her communications in a timely manner.
2. Ms X says the delays affected Y’s academic development and caused him anxiety and distress. She says she also experienced uncertainty about the outcome and frustration and distress trying to resolve her complaint.

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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. 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)
4. We must also consider whether any fault has had an adverse impact on the person making the complaint. We 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)
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 information provided by Ms X and discussed the complaint with her. I also made enquiries with the Council and considered its response and evidence provided.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before reaching a final decision.

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What I found

Relevant law and guidance

9. Children with special educational needs may have an education, health and care plan (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)
10. 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.
11. 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. The Code says the psychologist should normally be employed or commissioned by the local authority.

Those consulted have six weeks to provide the advice.

12. 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))

Delays in educational psychology assessments in Surrey

13. The Council told us it has a large backlog of EHC needs assessment awaiting an educational psychologist assessment. It explained how its Educational Psychology Service had seen a significant increase in referrals (since 2020) for EHC plans. It noted a national shortage of qualified educational psychologists and other key professionals who provide advice as part of the needs assessment process. As a result, there had been high demand for assessments but a reduced availability of EPs that undertake assessment work.
14. On 25 July 2023, the Council’s Cabinet approved the Council’s EHCP Timeliness Recovery Plan to try to deal with the issues it has been experiencing due to a lack of capacity in its Educational Psychology Service and Special Educational Needs Team. This report and Recovery Plan is publicly available.
15. The Council explained it has taken several actions to address the delays and improve adherence to the timescales in the Code. These included:
• Securing significant additional funding and resources to address the backlog of EHC assessments including recruitment of additional SEND officers.
• Prioritising statutory assessment work over other work.
• Advertising both locally and nationally to fill EP positions.
• Commissioning an external provider to support this work.
• Developing a Recovery Plan, with short-term and long-term goals.

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What happened

16. Ms X explained her son Y, attends a mainstream school but has struggled with his education due to serious health issues he experienced in early childhood.

2022

17. Ms X was increasingly concerned about Y lack of academic development.
18. In mid-July 2022, Mrs X requested the Council assess Y’s EHC needs.
19. On 8 August, the Council advised Ms X that it would carry out an assessment. Ms X said she did not receive any further contact from the Council.
20. In early October, Ms X sought an update from the Council. In reply the Council apologised for the lack of communication and said Y’s designated SEND case officer (CO) would be in touch. However, the records do not show any further response to Ms X.
21. In mid-December Ms X emailed the Council again and complained about the lack of progress and poor communication.
22. The CO then telephoned Ms X to explain the delay was due to a national shortage of EPs. In an email the CO also listed the steps the Council was taking to address the issues (see para 15). The CO said the Council would be in touch in the next two months to organise an assessment. The records do not show the Council contacted Ms X as advised.

2023

23. In mid-March Ms X emailed the Council again asking for a further update. She explained the situation was affecting her and Y as he was continuing to struggle with his learning which was causing her distress.
24. In late March 2023, the CO sent Ms X an email update to apologise for the continued delays in completing the EHC assessment process. They said the Council was regularly checking case progress. However, Ms X could also raise any concerns about Y with his school’s SEND officer.
25. The records say the Council allocated an EP for Y’s assessment on 11 May.
26. In early May 2023, Ms X formally complained to the Council about the issues she raised with us.
27. In its stage 2 complaint response (24 May 2023), the Council:
• Explained it should have advised Ms X if it was issuing Y an EHC plan by (week 16) - 1 November 2022, and Y’s final EHC plan should have been shared with Ms X by (week 20) - 29 November. But it had failed to meet the above statutory deadlines.
• Explained a national shortage of EPs had impacted the EHC assessment process and caused the delays.
• Apologised for the delays and accepted communication with Ms X had not been to the high standard expected. It had since provided feedback to the officers and managers involved to improve future performance.
• Agreed to nominate an officer to track Y’s case progress and keep Ms X updated.
28. At the end of May, the Council notified Ms X that an EP had been allocated.
29. Unhappy with the lack of progress Ms X approached the Ombudsman in early June.
30. At the end of June, the Council received Y’s EP report and put his case to a panel. On 5 July the panel agreed that Y needed an EHC plan.
31. On 14 July, the Council issued Y’s draft EHC plan.
32. On 17 July, the Council issued Y’s final EHC plan.
33. In response to our enquiries the Council:
• Re-iterated its apology to Ms X and offered a symbolic payment of £300 to acknowledge the time and trouble caused by the uncertainty and delay in completing Y’s EHC assessment.
• Explained it could offer Y catch-up provision for any special educational provision included in his final EHC plan missed due to the statutory timescales being missed.

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Analysis

34. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code, and we are likely to find fault where there are significant breaches of timescales.
35. The Council decided to carry out an EHC needs assessment for Y on 8 August 2022. This means the educational psychologist’s (EP) report should have been available within 6 weeks by 19 September 2022 to comply with the six-week time frame. However, the EP report was not completed until 29 June 2023- a delay of around 36 weeks. I note the Council’s explanation of the problems facing its Educational Psychology Service. I also note its commitment to improving services. But the delay was not in line with the Code and, is service failure, which caused Ms X uncertainty and frustration about the outcome. This is injustice.
36. The Council also failed to issue Y’s final EHC plan within the statutory time-limit, from the date of Ms X’s July 2022 request. It should have issued Y’s final EHC plan by 29 November 2022, but issued it on 17 July 2023. This is a delay of about seven and a half months. This delay is also not in line with the Code and is service failure which caused Ms X uncertainty, frustration and distress about the outcome. This is injustice.
37. Ms X explained she did not receive proper updates from the Council. The records show she had to chase the Council on several occasions between October 2022 and March 2023 before eventually complaining in May. The Council also accepted (stage two complaint response) that its communication was not good or to the standard it expected of itself. The Council’s failure to keep Ms X properly updated and respond in a timely fashion was poor communication and fault, which caused her uncertainty and frustration. She therefore felt the need to complain to the Council and then approach the Ombudsman. This is injustice.
38. Normally where we find fault, we go on to recommend an organisation makes improvements to its service. However, in this case I have not made any such service improvements, as I am satisfied at this stage, that the Council has fully considered the matter at a recent Cabinet meeting and through its public Recovery Plan.

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Agreed action

39. To remedy the personal injustice caused, within one month of my final decision, the Council should:
• Write to Ms X and apologise for the delay in completing Y’s EHC assessment, delay in issuing Y’s final EHC plan and poor communication and any uncertainty, frustration and distress caused to her.
• Make a symbolic payment of £800 to Ms X to acknowledge the distress, frustration and uncertainty caused to her by the Council’s failure to issue Y’s final EHC plan in line with statutory timescales.
• Make a symbolic payment of £200 to Ms X in recognition of the delays in communication and failing to keep her updated and any uncertainty, frustration and distress caused.
• Discuss with Ms X whether it needs to provide any further catch-up provision or support to Y for any special educational provision included in his final EHC plan affected by the statutory timescales being missed.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I find fault which caused injustice to Ms X and Y. I have made recommendations to remedy the injustice caused.
42. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman