• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• My assessment
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: We upheld Mrs X’s complaint about delays in the Education, Health and Care Plan process regarding her child, Y. The Council agreed to resolve this complaint early by providing a proportionate remedy for the injustice caused. We did not investigate Mrs X’s complaints about poor communication because an investigation by the Ombudsman is unlikely to achieve anything further. The Information Commissioner’s Office is better placed to consider Mrs X’s other complaints.

The complaint

1. Mrs X complained about the Council’s:
   • delays in the Education, Health and Care process regarding her child, Y;
   • decision to name a school in her child’s EHC Plan which she said was unsuitable;
   • poor communication; and
   • response to a freedom of information and subject access request.
2. Mrs X says the matters caused her distress, frustration, and uncertainty.

Back to top

The Ombudsman’s role and powers

3. 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).
4. 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
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

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

5. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about access to records. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
7. 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.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

9. I considered information provided by the complainant and the Council.
10. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

11. 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 May 2023. The Council agreed to assess Y, however, the Council delayed in obtaining an Educational Psychology report. It made a final EHC Plan for Y in early March 2024.
    • Because the Council decided to make an EHC Plan for Y, it should have done so within 20 weeks of the original request, by mid-October 2023. It did not do so until early March 2024. This was a delay of four and a half months.
    • 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).
12. 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.
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 Mrs X by the delays.

Mrs X’s other complaints

15. Mrs X complained the Council named a school in Y’s EHC Plan which was unsuitable. Mrs X and the Council engaged in mediation, which is the correct process to follow prior to a SEND Tribunal appeal. The Council agreed at mediation to amend Y’s EHC Plan in line with Mrs X’s wishes. An investigation by the Ombudsman is therefore unlikely to result in a finding of fault or achieve any other outcome because the Council followed the correct process regarding mediation.
16. Mrs X complained about the Council’s communication, including that it failed to call her following a Council decision meeting. In its complaint response the Council accepted fault for failing to call Mrs X and apologised. It explained it emailed Mrs X the following day. The apology is sufficient to remedy any injustice caused by the fault. Therefore, an investigation by the Ombudsman is unlikely to achieve any additional outcome.
17. Mrs X complained the Council failed to provide her with information about school banding funding and did not provide her with a satisfactory response to her subject access request about its consultations with schools regarding Y. We will not investigate these matters because the Information Commissioner’s Office is better suited to consider these complaints.

Back to top

Agreed action

18. Within one month of this final decision the Council agreed to pay Mrs X £450 (equivalent to £100 per month of delay) to recognise the distress, frustration and uncertainty caused by the delay in the EHC Process.

Back to top

Final decision

19. We upheld this complaint because the Council agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Mrs X. We will not investigate some of Mrs X’s complaints because an investigation would not achieve any additional outcome, and there is another organisation better suited to consider some of the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page