Summary: We will not investigate Dr Y’s complaint about the time taken to complete an Education Health and Care Needs Assessment. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. Delay by the Council has not caused a personal injustice significant enough to warrant our involvement.

The complaint

1. The complainant, whom I shall refer to as Dr Y, complained the Council had failed to complete an Education Health and Care Needs Assessment (EHCNA) in the required time. Dr Y says the delay will affect the chances of Y being offered a place in an appropriate school. Dr Y is unhappy the Council has not used a private Educational Psychologist to avoid the delay.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint,
• it would be reasonable for the person to ask for an organisation review or appeal.

(Local Government Act 1974, section 24A(6))

3. 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)
4. 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.

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

Background

7. Parents of children with Special Educational Needs (SEN) can ask their council to carry out an EHCNA. This is the first stage in securing an Education Health and Care Plan (EHCP) for a child.
8. Once a council receives a request for an EHCNA, it must decide whether to proceed to the next stage of the process within six weeks. If a council decides not to proceed to the next stage, or eventually decides not to issue an EHCP, parents can appeal to the SEND Tribunal. If a council does issue an EHCP, parents can also appeal its content to the SEND Tribunal. The entire EHCP process should generally last no more than 20 weeks. This does not include the time taken by any appeals to the SEND Tribunal.
9. The Council accepted Dr Y’s request for an EHCNA on 09 November 2022. The Council should therefore have made a decision by 22 December – six weeks after the request.
10. In its responses to Dr Y’s complaints the Council accepted it had missed this deadline. It said it was due to a high number of requests and a national shortage of Educational Psychologists. The Council said it could not outsource individual requests to private practitioners. It also could not pause the entire consultation process for Reception places, as this would disadvantage parents who had made earlier requests for an EHCNA. The Council said Dr Y would be contacted by an Educational Psychologist by 06 January 2023, with the assessment starting during the following week.

Assessment

11. The Council has clearly missed the six-week deadline for deciding whether to proceed with an EHCNA. But we will not investigate Dr Y’s complaint. This is because while the Council is at fault, it has said when an Educational Psychologist will start their assessment. If we investigated, we could not achieve anything more. The current injustice to Dr Y from the delay is also not significant enough to warrant our involvement. It is currently limited to not having a decision on the EHCNA.
12. If there were to be further delays, then it is possible we would investigate. But it is likely we could only establish the exact injustice once the EHCP process was complete. It is currently ongoing. So, should there be further delays, Dr Y can make a fresh complaint to us. But there would need to be a final decision, appealed if necessary to the SEND Tribunal, that establishes their child’s SEN and what special educational provision is needed. We could then properly assess the injustice from the delay and decide if an investigation was appropriate.

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Final decision

13. We will not investigate Dr Y’s complaint because the injustice is not significant enough to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman