Summary: Mrs P complained the Council delayed its education, health and care needs assessment for her son, due to a delayed educational psychologist assessment. She also complained about the Council's poor communications. The Ombudsman upholds the complaint. The Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Mrs P, complained the Council has delayed its education, health and care (EHC) needs assessment for her son (whom I shall refer to as Q). She also complained about the Council's poor communications throughout the process.
2. As a remedy, Mrs P wanted the Council to treat issuing a EHC plan as a priority, as her son was in a transition year, between key stages and schools. It should offer some catch-up provision or funding.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’  and ‘service failure’. 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. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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.
7. 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)
8. 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

9. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs P;
• made enquiries of the Council and considered its response;
• spoken to Mrs P;
• sent my draft decision to Mrs P and the Council and considered their responses.

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What I found

Relevant law and guidance

10. Children with special educational needs (SEN) may have an 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)
11. 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.

12. 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.

13. 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)) 
14. At the stage when a council refuses to issue an EHC plan, or when it issues a final EHC plan, parents and the young person have a right to appeal to the SEND Tribunal if they disagree with the council’s decision. They have two months to lodge an appeal.

What happened

Delays in educational psychology assessments in Surrey

15. The Council told us it has a backlog of around 1000 EHC needs assessment awaiting an educational psychologist assessment. It explained how its Educational Psychology Service had seen a 64% increase in referrals (since 2020) for Education, Health and Care plans. It noted a national shortage of qualified educational psychologists and other key professionals who provide advice as part of the needs assessment process. The core Educational Psychology Service staffing was at 50%. As a result, there had been high demand for assessments but a reduced capacity in the teams that undertake assessment work.
16. The Council has explained how its Service had taken several actions to address the delays and improve adherence to the timescales in the Code. These included:

• prioritising statutory assessment work over other work;
• advertising both locally and nationally to fill positions;
• extending the use of locum and associate educational psychologists;
• commissioning an external provider to support this work;
• some temporary changes to its policy on accepting private educational psychologist assessments; and
• developing a Recovery Plan, with short-term and long-term goals.

17. The Council has acknowledged that, in teams with staffing vacancies, there have been gaps in communications with parents. It has produced an information leaflet for parents who are awaiting assessment, advising them of the reasons for the delays. It also says it would provide parents with an update every three weeks.
18. From January 2023, the Council has introduced a triaging system for new requests for an EHC needs assessment. One of the groups of children its new system treats as a priority are children at a Key Stage Transfer. The Council says that before it introduced its triaging system it reviewed every child waiting for an EHC needs assessment that might be a priority.

Q’s assessment

19. Q was a primary school child with SEN. On 22 July 2022, Q’s school asked the Council to carry out a EHC needs assessment. On 16 August, the Council agreed to carry out an assessment. It asked its Educational Psychology Service to carry out an assessment on 17 August.
20. Mrs P contacted the Council’s team in early September as she had not received any update. She asked who Q’s caseworker was. The Council responded copying in Q’s caseworker.
21. The Council’s educational psychologist should have produced their report by no later than 28 September.
22. Mrs P emailed the Council in September and again in November seeking updates. The Council’s officer explained the response from its educational psychologist was delayed. Mrs P responded by noting Q was in his final year of primary education. She asked the Council to commission a private educational psychologist report. The Council officer’s response apologised for the delay in the process. She advised the Council would not commission a private educational psychologist report.
23. The statutory deadline of 20 weeks from the date Mrs P requested an assessment was 9 December 2022.
24. Mrs P complained. The Council’s responses upheld the complaint because of the delay. It said its Educational Psychology Service used a prioritisation system. And it was expecting to complete its educational psychologist report by 30 April 2023.
25. At the end of June, the Council’s panel agreed to issue an EHC plan and later sent Mrs P a draft plan. Mrs P says she responded within two weeks (on 13 August) to the draft plan. She commented on the Council saying Q could manage in a mainstream setting, as she did not believe that type of setting could meet his needs. The Council has not yet issued a final EHC plan and Mrs P says some further communications have gone unanswered.

Analysis

26. We expect councils to follow the statutory timescales set out in the law and 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.
27. The Council has accepted there was fault in this case. It is required by law to produce a final EHC plan within 20 weeks for receiving the request for a needs assessment. It should have done this by 9 December, but to date the plan is still outstanding.
28. We note the Council’s explanation of the problems facing its Educational Psychology Service. But the delay was not in line with the Code and so was service failure.
29. Q’s school’s application for an EHC needs assessment pre-dates the Council introducing its triaging (in January 2023), of which EHC assessments to prioritise for educational psychologist assessments. The Council says it was reviewing priority before then. But in Q’s case, it did not result in a final EHC plan before Q moved to secondary school, a change in Key Stage. I would have expected a review to have prioritised Q’s assessment on that basis. To have not done so was fault.
30. I also uphold Mrs P’s complaint about poor communications. While I accept that there may have been little news, while the team was awaiting the educational psychologist assessment, the Council should have kept in touch with Mrs P at regular intervals. I note, since the time of Mrs P’s complaint, the Council has committed to provide three weekly updates, although Mrs P says these have not happened.
31. As there is fault in this case, I have to consider the injustice caused to Mrs P and Q and recommend a remedy. As the needs assessment has not yet been completed we do not know what needs will be met in a plan and so cannot provide a remedy for lost provision. However, Mrs P and Q have experienced uncertainty and distress and this is ongoing.
32. In making my recommendation, I am taking into account the delay is ongoing. And also the increased uncertainty in an important year for Q – a Key Stage change and change of school. Mrs P has also been put to time and trouble pursuing this matter.
33. But, if Mrs P feels the educational support set out in the plan or school named does not meet Q’s current needs, she would have a right of appeal to the SEND Tribunal. We cannot direct changes to the sections about education or name a different school. Only the Tribunal can do that.
34. I also want to acknowledge the proactive steps the Council is taking to try to resolve the lack of educational psychologists. It has recently approved significant financial investment to address these issues and resulting delays.

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Agreed action

35. To remedy the injustice resulting from the identified fault in this case the Council should, within one month of my final decision, take the following action:
• apologise to Mrs P and Q for the faults identified in this statement;
• make Mrs P a symbolic payment of £1000 to acknowledge her and Q’s distress, uncertainty and her time and trouble for the delay to date; and
• to acknowledge the ongoing uncertainty and distress, make Mrs P a symbolic payment of £100 for every month, from September 2023, until the final plan is issued. We accept that this payment will be calculated and paid retrospectively once the decision about the EHC plan is made rather than in monthly instalments.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I uphold this complaint. The Council has agreed to my recommendations, so 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