Summary: We upheld Mrs X’s complaint about delays in the Education, Health and Care process regarding her child, Y. The Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused.

The complaint

1. Mrs X complained about delays in the Education, Health and Care (EHC) process regarding her child, Y. Mrs X said this caused her frustration and distress.

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

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

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My assessment

5. If we investigated this complaint, we would likely find fault because:
• Mrs X asked the Council to complete an EHC needs assessment of Y in mid-July 2023. The Council decided not to conduct an assessment in early September. This was 12 days beyond the six-week timescale.
• Following a “way forward meeting” in mid-October 2023, the Council wrote to Mrs X in mid-November 2023 and said it agreed to conduct an EHC needs assessment of Y.
• To comply with the total 16-week timescale for deciding not to make an EHC Plan for Y, the Council should have made its decision by mid-January 2024. Or, if the Council decided to make an EHC Plan for Y, it should have done so within the total 20-week timescale by mid-February 2024.
• In its complaint response to Mrs X, the Council accepted it had delayed completing Y’s EHC needs assessment. It apologised to Mrs X and said the delay was caused by a shortage of Educational Psychologists (EPs).
6. The Ombudsman’s 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 we are satisfied the Council has plans in place to address the lack 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.
7. During a recent investigation by us about similar matters, the Council has 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.
8. We therefore asked the Council to consider remedying the injustice caused to Mrs X by the delays.

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Agreed action

9. The Council agreed to:
• write to Mrs X and apologise for the uncertainty and frustration caused by the delays in the EHC process; and
• if the decision is to refuse to make an EHC Plan for Y, pay Mrs X £100 per month of delay, calculated from 18 January 2024, until the decision letter is sent; OR
• if the decision is to make an EHC Plan for Y, pay Mrs X £100 per month of delay, calculated from 15 February 2024, until the final EHC Plan is sent.
10. The Council agreed to make the payment within one week of the appealable decision being sent to Mrs X.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman