Summary: Ms M complains about delays by the Council carrying out education, health and care needs assessments for her children, B and C. The delays were caused by a shortage of Educational Psychologists. The Council apologised and has offered a symbolic payment for the impact on B whose EHC Plan was delayed as a result. The Council has recruited more Educational Psychologists.

The complaint

1. Ms M complains about delays by the Council carrying out education, health and care (EHC) needs assessments for her children, B and C.
2. Ms M complains the Council failed to obtain advice from a Speech and Language Therapist for B’s EHC needs assessment.
3. Ms M complains the Council agreed to obtain advice from an Occupational Therapist for C’s EHC needs assessment, but decided not to issue an EHC Plan before receiving the advice.
4. Ms M complains the Council missed the statutory deadlines to make decisions for both children and issued her son B’s Education, Health and Care (EHC) Plan late.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I have considered information provided by Ms M and information provided by the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

8. Ms M asked the Council to undertake EHC needs assessments for B and C on 3 May 2022.
9. The Council agreed to undertake the assessments on 1 June 2022.
10. On 21 September 2022, Ms M complained about delay. She also complained the Council had not sought advice from a speech and language therapist for B’s assessment.
11. The Council responded on 2 November 2022. The Council explained there had been a delay obtaining advice from an Educational Psychologist. The Council received the Educational Psychologist’s advice on 28 October 2022. The Council explained that B was not known to the speech and language service and suggested Ms M contact the NHS Speech and Language Team.
12. On 9 November 2022, the Council decided it would issue an EHC Plan for B. The Council issued the draft Plan on 11 November 2011.
13. The Council notified Ms M it had decided not to issue an EHC Plan for C on 16 November 2022.
14. Unhappy with the Council’s response, Ms M asked the Council to respond at the second stage of its complaints process on 14 November 2022.
15. The Council responded on 20 December 2022. The Council explained the steps it had taken to increase capacity in the Educational Psychology service. The Council accepted it should have referred B to the Speech and Language service. The Council said it would make the referral and add any advice to B’s EHC Plan. The Council apologised again for the delay in B’s EHC needs assessment.
16. Ms M complained to the Ombudsman on 3 January 2023.
17. The Council issued B’s Final EHC Plan on 9 January 2023.
18. The Plan says B can attend a mainstream school with additional support. Ms M was unhappy with this since she wanted a package of education other than at school (EOTAS).
19. Ms M requested a mediation certificate from the Council so she could appeal to the Tribunal. However, Ms M and the Council agreed a package of EOTAS and Ms M decided not to appeal.

Complaint 1: delay

20. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
21. Having decided to issue an EHC Plan for B, the Regulations say the Council should have issued the final Plan within 20 weeks of Ms M’s request, that is by 21 September 2022. Ms M and the Council agreed a short extension to allow Ms M more time to consider the draft. Nevertheless, the Plan was still 13 weeks late. This was fault. B could have received special educational provision sooner if the Council had issued his Plan on time. I will recommend a remedy for this injustice below.
22. The Council decided not to issue an EHC Plan for C. The Regulations say when a Council decides not to issue an EHC Plan, it must notify the parent as soon as practicable and within 16 weeks of receiving the request. The Council notified Ms M 24 weeks after she requested the assessment, eight weeks late. This was fault.
23. The Council accepts it did not meet the statutory deadlines. It said the reason was delay obtaining advice from an Educational Psychologist. Ms M described the stress of dealing with EHC needs assessments for her children, and the additional stress caused by the delays. The Council has apologised for the delays and explained the steps it is taking to recruit more Educational Psychologists. I welcome the Council’s response.

Complaint 2: assessments

24. Ms M complains the Council did not obtain advice from a Speech and Language Therapist before issuing B’s Plan.
25. In its complaint response, the Council accepted it should have referred B to the Speech and Language Therapy Service. The Council said it made a referral in January 2023, but the referral was declined by the NHS clinical specialist. The Council said it was pursuing the matter further.
26. While the Council accepts it should have made a referral sooner, I cannot say it caused an injustice since the NHS Speech and Language Service did not accept the referral. I cannot investigate decisions by the Health Service.
27. Nevertheless, the Council is pursuing the matter. I consider this an appropriate response.
28. Ms M complains the Council agreed to obtain Occupational Therapy advice for C, but decided not to issue a Plan before it received the advice.
29. The Council confirmed this was the case and said it was due to delays receiving the Occupational Therapy advice from the NHS. The Council said it received the advice on 12 April 2023. It then reviewed Ms M’s request to issue an EHC Plan for C in light of the advice. The Council decided it would not issue a Plan and wrote to inform Ms M. It also notified Ms M of her right to appeal the Council’s decision. I consider this an appropriate response.

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Agreed action

30. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, we may recommend the Council makes a symbolic payment.
31. The Council agreed a package of education other than at school (EOTAS) for B. If the Council had issued his EHC Plan on time, the package could have been in place in September 2022 rather than January 2023. That is approximately one school term. To remedy the injustice caused by the delay, I recommended the Council make a symbolic payment to Ms M of one third the cost of B’s EOTAS package.
32. I recommended the Council makes the payment within six weeks of my final decision. The Council should provide us with evidence it has complied with the above actions.
33. The Council accepted my recommendations.

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Final decision

34. I have completed my investigation as the Council accepts my recommendations.

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Investigator's decision on behalf of the Ombudsman