Summary: We will not investigate Mr X’s complaint about the Council not obtaining the required advice and information from occupational health in time for the EHC plan to be completed within the required timescales. This is because the Council agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Mr X and his child.

The complaint

1. Mr X complains about delay in the Council completing an Education, Health, and Care (EHC) needs assessment for his child. He says the Council did not obtain the required advice and information from occupational health in time for the EHC plan to be completed within the required timescales.

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The Ombudsman’s role and powers

2. 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 an investigation if we decide:
• any injustice is not significant enough to justify our involvement, or
• there is no worthwhile outcome achievable by our investigation.

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

3. 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)

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X requested the Council complete an EHC needs assessment in February 2023. The Council confirmed it had referred the child to the NHS for an occupational therapist (OT) assessment but there was some delay in the NHS OT service assessing the child.
7. Mr X asked the Council to commission an independent OT report to ensure the advice would be received in time for the statutory deadlines. The Council refused and confirmed once the assessment was completed, it could amend the EHC plan to reflect the outcome. The OT assessment was completed in August 2023.
8. Under the law, the Council must either:
• Decide not to issue an EHC plan within 16 weeks of the date of the request for assessment. In this case, May 2023.
• Decide to issue an EHC plan. The EHC plan must be issued within 20 weeks of the date of the request for assessment. In this case, June 2023.
9. The Council issued a final EHC plan at the end of June. This was six days later than the statutory deadline. However, an investigation is not justified as this delay is unlikely to have caused any significant injustice given the delay itself was not very significant. The Council subsequently amended the final EHC plan once the OT assessment was received.
10. The Council’s duty under the law is to seek advice. The Council met this duty as it asked the NHS to complete an OT assessment. The NHS is required to provide its advice within six weeks. Any complaint about the NHS’s failure to do this is a matter for the health service. Mr X can complain about this to the relevant Integrated Care Board (ICB).
11. I note Mr X considers the first final EHC plan was inadequate as, without the OT assessment, it did not properly reflect his child’s needs. However, Mr X had the right to appeal the contents of the EHC plan if he felt it was inadequate. As part of his arguments to Tribunal, Mr X could have raised his dissatisfaction with the Council’s decision to issue the plan without the OT advice. It was reasonable for Mr X to have used his right of appeal to challenge the EHC plan. Therefore, we cannot investigate this complaint.
12. I also acknowledge Mr X considers the Council should have waited until it had received the OT report before writing the final EHC plan. However, the Council must issue the final EHC plan within the statutory timescales, in this case by June 2023. Had the Council waited any longer, this would have been fault as it would have denied Mr X his right of appeal. As above, as Mr X had the right of appeal, we cannot consider any complaint about the Council’s decision to issue the final plan without the OT report.
13. The Council issued an amendment notice in September 2023 once it received the OT report. If this was treated like an annual review for the purposes of determining the statutory timescales, the Council should have issued the amended EHC plan within eight weeks (November 2023) of receiving the OT report. However, the Council did not issue the final EHC plan until February 2024. This is a delay of three months.
14. I am satisfied this delay will have caused frustration and distress to Mr X and uncertainty regarding the impact on his child’s educational progress. We therefore invited the Council to remedy this by making a symbolic financial payment of £500. The amount is to acknowledge the injustice caused to both Mr X and his child.

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Agreed action

15. To its credit, the Council agreed to resolve the complaint and will complete the above within four weeks of the final decision.

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Final decision

16. We have upheld this complaint because the Council agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Mr X and his child.

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Investigator's decision on behalf of the Ombudsman