Summary: We upheld Ms X’s complaint about delays in the Education, Health and Care process regarding her child, Y. The Council agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused. We did not investigate some of Ms X’s complaint because Ms X already appealed the matter to the SEND Tribunal and the law says we cannot investigate.

The complaint

1. Ms X complained:
• about delays in the Education, Heath and Care (EHC) needs assessment of her child, Y;
• about the Council’s original decision not to assess Y for an EHC Plan; and
• about the Council’s poor communication.
2. Ms X says the delays caused her distress and uncertainty. Ms X says the matter impacted Y financially.
3. Ms X wants the Council to complete the EHC assessment process; apologise for the delays in the process; agree it was wrong to refuse to assess Y for an EHC Plan; to reimburse Y for lost earnings, and to pay Y’s bus fares for the year 2024/25. Ms X also wants a financial remedy for the distress and uncertainty caused.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended).
5. We investigate 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 continue an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), 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. I considered information provided by the complainant and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. If we investigated this complaint, we would likely find fault because:
• The Council decided not to assess Y for an EHC Plan. Ms X appealed the decision to the SEND Tribunal. In August 2023 and the Council said it would not contest the appeal and agreed by consent to complete an EHC needs assessment of Y.
• Ms X said the Council told her it will make an EHC Plan for Y, but has not yet made a final EHC Plan for Y.
• Because the Council agreed by consent in line with Regulation 45 of the SEND code of practice, and it has decided to make an EHC Plan for Y, it should have made a final EHC Plan within 14 weeks of the date it notified the SEND Tribunal of the uncontested appeal. The deadline to make the final EHC Plan was 28 November 2023.
• In its complaint response to Ms X the Council accepted it had delayed completing Y’s EHC needs assessment. It apologised to Ms X and said the delay was caused by a shortage of Educational Psychologists (EPs).
12. The Ombudsman’s current approach is that, although we acknowledge the national shortage of EPs, a failure to complete the EHC needs assessment process within the statutory timescales is fault. Where a Council is making suitable efforts to increase its availability of EPs, we would likely find fault due to “service failure”. Service failure can happen when an organisation fails to provide a service as it should have done due to circumstances beyond its control.
13. During a recent investigation by us about similar matters, the Council provided evidence of action it has taken to address the shortage of EPs. As a result, further investigation is unlikely to result in additional recommendations because the Council is already acting to resolve the issues.
14. We therefore asked the Council to consider remedying the injustice caused to Ms X by the delays.

Matters not investigated

15. We cannot investigate Ms X’s complaint about the Council’s original decision not to complete an EHC needs assessment of Y. This is because Ms X appealed the decision to the SEND Tribunal, and the law says we cannot investigate any matter that has been appealed to a Tribunal.
16. Ms X complained about the Council’s poor communication. The Council apologised for its poor communication in its complaint response to Ms X. This is an appropriate remedy for the injustice caused and an investigation by the Ombudsman is unlikely to achieve anything further. Therefore, we will not investigate this matter.
17. Ms X asked the Ombudsman to consider recommending the Council reimburse Y for lost earnings for the year 2023/24, and to recommend the Council pay Y’s bus fare for the year 2024/25. We cannot achieve this outcome because any lost earnings for the year 2023/24 is speculative and we could not determine any potential loss of earnings. In addition, we could not recommend the Council pay Y for bus fares in 2024/25 as this is not in line with our Guidance on Remedies. Therefore, we will not consider these matters further.

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Agreed action

18. The Council agreed to:
• write to Ms X and apologise for the frustration and uncertainty caused by the delays in the EHC process; and
• pay Ms X £100 per month of delay, calculated from 28 November 2023, until the final EHC Plan and decision letters are sent.
19. The Council agreed to complete the above actions within one week of the appealable decision being sent to Ms X.

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Final decision

20. We upheld this complaint because the Council agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Ms X. It is also acting to improve its service for others.

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Investigator's decision on behalf of the Ombudsman