Summary: Ms F complains the Council has delayed completing an EHC assessment for her son and has not obtained information and advice from an educational psychologist or therapists. We found fault which caused uncertainty to her son and the family. The Council has agreed to make a payment to Ms F to remedy this.

The complaint

1. Ms F complains the Council delayed completing an EHC assessment for her son, J and has not obtained information and advice from an educational psychologist, speech and language therapist and occupational therapist.
2. She says the delay has caused her son and the family significant anxiety and distress about his future and he is unable to attend school full time as support is not in place.

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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. 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)
4. 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.
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 considered the information Ms F sent, the Council’s response to my enquiries, and the Special Educational Needs and Disability Code of Practice ("the Code").
7. Ms F and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Special educational needs

8. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
9. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

EHC needs assessments

10. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request. Parents can challenge a refusal to assess by appealing to the SEND Tribunal.
11. If the council agrees to assess, it must seek information and advice on the child's needs, the provision required to meet those needs, and the outcomes expected to be achieved by the child. The Code says:
• 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 (unless certain specific circumstances apply).
12. In order to complete an EHC needs assessment the Council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests.
13. The Council does not have to seek advice or assessment where an assessment has been carried out recently and if the parent, school and relevant experts agree the findings are sufficient for an EHC plan. The Code says advice and information requested by the local authority must be provided within six weeks of the request.
14. Following the completion of an EHC needs assessment, if the local authority decides that an EHC plan is not necessary, it must notify the child’s parent, giving reasons for its decision, within 16 weeks of the initial request. Parents can appeal this decision to the SEND Tribunal.

What happened

15. Ms F’s son, J, has autism and anxiety. He is attending a mainstream school but has been unable to attend full time due to anxiety.
16. Ms F asked the Council to assess J’s education, health and care needs on 11 July 2022. On 21 July she asked it to seek advice from a speech and language therapist (SALT). Ms F said this was a reasonable request because J’s school had identified he had communication difficulties.
17. The Council agreed to carry out the assessment and notified Ms F of this decision on 16 August. It sought advice from an occupational therapist (OT), health care professional, social care and an EP on 23 August 2022. The Council says its multi-disciplinary panel did not request advice from SALT as J was not known to the service. The professionals’ reports were due by 4 October 2022.
18. The OT carried out an assessment of J on 12 October and recommended termly input to support J and the school to follow a programme of advice.
19. Ms F complained to the Council on 8 November that it had failed to obtain educational psychology advice or SALT advice. She also complained the OT advice was insufficient.
20. The Council’s response to Ms F’s complaint apologised for the delay. It said this had been caused by a lack of EPs nationally. In Surrey the EP service had prioritised statutory assessments, advertised to recruit, used locum and associate EPs and commissioned an external provider. The OT had updated her report.
21. The Council then asked for SALT advice. The SALT assessed J in November 2022 but found he did not require specialist support.
22. Ms F escalated her complaint. In its final complaint response in February 2023 the Council said it had been unable to commission a private EP to assess J due to the national shortage.
23. In response to our enquiries in May 2023, the Council said an EP had now been allocated to J. The needs assessment had not yet been completed.

My findings

24. Once the Council agreed to assess J’s EHC needs it had a duty to either decide it would not issue an EHC plan by 31 October 2022 or to issue a final EHC plan by 28 November 2022. It has failed to do either of these; this is fault.
25. I find it was fault not to request the SALT advice in August 2022 as Ms F had made this request by then, it was a reasonable request and although the multi-disciplinary panel did not suggest SALT advice was needed, I have seen no evidence it had considered Ms F’s request. But the delay in requesting SALT advice has not caused significant injustice. This is because the Council has also been waiting for EP advice.
26. I accept the problems the Council has had in finding an EP, but it is the Council’s duty to ensure it has sufficient resources in place to meet the statutory timescales. When it became clear the Council would not receive the psychology report within the 20-week timescale for completing the EHC plan, the Council should have considered whether to commission a private assessment or seek external advice. It says this was not possible due to the national shortage, but I have seen no evidence it attempted to source an independent EP.
27. I cannot say that an EHC plan would have been issued or whether, if there had been SEN support, J’s attendance at school would have improved. But the delay in completing the needs assessment has caused significant uncertainty for J and Ms F as they do not know whether SEN provision could have been put in place for him since December 2022 or whether this could have helped his attendance at school. It has also delayed Ms F’s opportunity to appeal to Tribunal.
28. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. Our guidance on remedies says a moderate symbolic payment may be appropriate to remedy uncertainty caused by fault.
29. We have upheld a number of complaints against the Council in relation to delayed EHC needs assessments caused by lack of educational psychology input in the last year. In response to one (22012228) the Council agreed to provide evidence to the Ombudsman of the actions it was taking to increase educational psychology capacity and reduce waiting times.
30. In July 2023 the Council advised us it was undertaking a priority recruitment programme to attract more EP staff, had enhanced the pay scale for EPs and had attracted four additional EPs since September 2022. It had also established 16 assistant psychologist posts and was providing additional funding to source external EPs. The Council had entered into a new commissioning arrangement from April 2023 to provide EP capacity to complete an additional 700 advice requests over a 12-month period. I therefore make no further service improvement recommendations.

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Agreed action

31. Within a month of my final decision, the Council has agreed to pay Ms F £500 to remedy the uncertainty caused by the delay in completing the EHC needs assessment.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman