Summary: There was fault by the Council which delayed obtaining advice from an Educational Psychologist and delayed issuing Y’s final Education, Health and Care Plan. This caused avoidable distress, frustration and a delay in appeal rights. The Council will apologise, issue Y’s final plan and make payments set out in this statement.

The complaint

1. Ms X complained the Council delayed obtaining an Educational Psychologist’s report for her son Y’s Education, Health and Care (EHC) needs assessment. She said this caused avoidable frustration, uncertainty, time and trouble, a financial loss because she paid for a private report and a loss of special educational provision.

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The Ombudsman’s role and powers

2. 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. 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)
3. 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)
4. 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

5. I considered Ms X’s complaint to us and supporting documents. I also considered the Council’s complaint responses and discussed the complaint with Ms X
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

7. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
8. 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 guidance is based on the Children and Families Act 2014 and the SEND Regulations 2014.
9. As part of the EHC assessment councils must gather advice from relevant professionals This includes advice and information from an Educational Psychologist. (SEND 2014 Regulations, Regulations 6(1)). Those consulted must respond within six weeks of the request. (The Code paragraph 9.41)
10. The Code 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. 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.
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
13. 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)

Complaints about delays in EHC needs assessment in Essex

14. We have investigated three other complaints about EP delay in the last 12 months. The Council told us during those investigations that it had taken action to address its staffing, including recruiting newly qualified EPs, engaging Associate EPs, and sponsoring EPs from abroad with work visas. It was also conducting an analysis on the recruitment and retention of EPs at the Council and implementing a number of recommendations from that work.
15. It ensured EP allocations were made according to date order to ensure equity. It had also offered parents to complete EP assessments virtually to expedite the process. It was backdating funding for all completed plans to the 20-week mark.
16. The Council said it would consider the use of independent EPs but it takes into account their availability and the costs. There was also a limited pool of independent EPs.
17. As a result of our investigations, the Council has issued a policy statement on the use of independent EPs, which is effective from September 2023. The policy has been shared with relevant officers. I have summarised this below:
• It is important to ensure there is a fair system which does not favour parents who can pay for independent EP advice
• It will accept parents’ independent EP reports
• Managers will devise a list of questions based on the independent report and allocate an Essex EP to review the report and answer the questions
• It won’t require an Essex EP report if the independent report provides sufficient information
• If there are gaps in the independent report, it would advise parents and an Essex EP will need to prepare a report
• An independent report will not mean a child’s case is prioritised at the expense of other cases.

What happened

18. Y has autism and is currently in Year 8 on roll at a mainstream secondary school, although not attending.
19. Ms X requested an EHC needs assessment on 31 October 2022 and the Council refused her request in writing on 12 December 2022. It then changed its mind following a meeting with Ms X in January and informed Ms X it had decided to carry out an assessment on 15 February 2023. Y’s case was placed on a waiting list for allocation of an EP.
20. Ms X spoke to the Council’s Director of Children, Families and Education at the end of April. They advised Ms X in emails that:
• she could obtain a private EP report, but the Council would not reimburse the cost.
• the Council would proceed with the necessary input from its own EPs and was continuing to develop its approach to the use of independent EP reports commissioned by parents.
• it would consider advice from private practitioners, but this was complementary to the Council’s EP report and not instead of
21. Ms X complained to the Council. It responded in April saying there was a delay in obtaining EP advice because of a shortage of EPs and the Council was not currently meeting the 20-week timescale. The Council went on to say it had commissioned associate EPs to undertake some reports, but there was still going to be a delay.
22. Y’s case was allocated to an EP on 7 June and they provided advice on the 28 June.
23. The Council’s view is that the 20-week deadline for issuing Y’s final EHC plan was 3 July 2023.
24. Ms X was unhappy with the Council’s response to her complaint and contacted us in July.
25. The Council decided to issue Y with an EHC Plan at a panel meeting on 31 August. It issued Y’s draft EHC Plan on 1 September.
26. At the time of writing, it has not issued a final EHC Plan.

Findings

27. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are breaches of those timescales.
28. The Council was in time in issuing its decision on 12 December 2022 – this was exactly six weeks from the date of Ms X’s request on 31 October so there is no fault.
29. Y should have had an EP report within six weeks of referral to the EP service so by the start of April. The report was not ready till the end of June because of a shortage of EPs. This was a delay of three months which is fault.
30. The whole process of assessment, issuing a draft plan and issuing a final plan, should have been completed by 20 March 2023 to be within 20 weeks of Ms X’s original request for an EHC needs assessment on 31 October 2022. The Council thinks the date is 3 July, based on its reconsidered decision on 14 February to carry out an assessment following the initial refusal in November 2022. This is incorrect. Neither the Code nor the SEND Regulations say anything about the 20-week timescale restarting in this way (unless there has been a Tribunal order, in which case the timescales are different, but this does not apply to Y). The 20 weeks starts from the date of the original parental request.
31. Therefore, the final EHC plan is at present late by six months and continuing.

Injustice

32. As the Council’s intention to issue a final EHC plan for Y, I have taken 20 March 2023 as the start date for the injustice he and Ms X have suffered as a result of the delays.
33. The delays have had an impact on Ms X and on Y. Had the Council met the timescales, Y would have had a plan and placement in place for the start of Year 8. It would have given him a better chance of settling in a new environment at the start of term. The fault also caused a delay in appeal rights, should Ms X wish to appeal the placement or provision.

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Agreed action

34. I have made a recommendation below to acknowledge the injustice up to the point when the Council issued Y’s draft EHC plan at the start of September 2023. I have made a further recommendation to ensure the Council continues providing a remedy for the continuing injustice from September until the date it issues the final EHC plan. I am satisfied the Council is actively recruiting EPs in its area to address the shortage and has a policy in place to address parental use of independent EPs and so I have not made any further service improvement recommendations. I have also not recommended reimbursement of the cost of the independent EP report because I am satisfied the Council advised Ms X that it would not reimburse her at the time.
35. Once the Council has issued a final EHC plan, Ms X will have a right of appeal to the Tribunal if she disagrees with the special educational needs, provision or placement specified in the EHC plan. As a result, I have not recommended a payment for any potential loss or delay in special educational provision to Y because the EP assessment and support set out in the final EHC plan should identify the special educational support Y now needs. If she feels it does not, then she has a right to appeal to the Tribunal.
36. Within one month of the final decision the Council should:
• Issue Y’s final EHC plan.
• Apologise for the delay and its impact on Ms X and on Y
• Pay Ms X £600 to acknowledge the distress, frustration and uncertainty caused to her and Y by the Council’s failure to issue his final EHC plan in line with statutory timescales. This remedy is calculated at roughly £100 per month from the date the Council should have issued the final EHC plan in March 2023 until the date it issued the draft plan in September 2023.
37. When the Council issues Y’s final EHC plan it should provide Miss X with a further financial remedy. This is to acknowledge the continued injustice caused by the delay in issuing Y’s final EHC plan from the date of the draft EHC plan in September 2023 up to the date of the final EHC plan. The Council should calculate the payment at £100 per month in line with the recommendation above. The Council should make this payment to Miss X within one month of the date of the final EHC plan. She should use it for Y’s benefit as she sees fit.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. There was fault by the Council which delayed obtaining advice from an Educational Psychologist and delayed issuing Y’s final Education, Health and Care Plan. This caused avoidable distress, frustration and a delay in appeal rights. The Council will apologise, issue Y’s final plan and make payments set out in this statement.
40. I have completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman