Summary: The complainant (Ms X) said the Council had failed to consider her complaint about the delays with an Education Health and Care needs assessment for her daughter (Y). We will not investigate this complaint as at the time when Ms X brought her complaint to the Council any injustice caused by the delays would not have been sufficient to justify our involvement.

The complaint

1. Ms X says the Council refused to consider her complaint about delays with an Education Health and Care (EHC) needs assessment.

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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 or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any injustice is not significant enough to justify our involvement.

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

3. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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What I have and have not investigated

5. I have not investigated what happened after the Council provided its final response to Ms X’s complaint at the beginning of June 2024. Any events from this date would not be included in Ms X’s complaint and therefore would need to be considered by the Council first, as explained in paragraph four of this decision.

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How I considered this complaint

6. I spoke with Ms X and considered the information provided by her and the Council.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law

8. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• where councils decide it is not necessary to issue an EHC Plan for a child, they should notify the parents within 16 weeks from the date they received request for an EHC needs assessment;
• the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.
9. As part of the assessment councils must gather advice from relevant professionals. This includes psychological advice and information from an Educational Psychologist (EP). (Special Education Needs Regulations 2014 paragraph 6(1)) Those consulted have a maximum of six weeks to provide the advice.

What happened

10. Ms X asked the Council to carry out an EHC needs assessment for Y in mid-February 2024. At the beginning of April the Council agreed.
11. In mid-April 2024 Ms X communicated with the Council about her dissatisfaction with the Council’s delays. The Council confirmed it would consider her complaint as separate from any social care matters. At the end of April Ms X raised her complaint about the Council’s delays within the EHC Plan process for Y.
12. The Council responded to Ms X’s complaint a month later. It said it had asked for the EP advice in mid-March but due to the nation-wide shortage of EPs the service had failed to provide its advice on time. The Council apologised and explained that due to the lack of EP advice it would not be able to meet its statutory timescales within the EHC Plan process.
13. When Ms X asked the Council to take her complaint to stage two at the beginning of June, the Council said it would not consider her complaint further as it had already responded. Once it completes the process, Ms X can complain again as only then the Council can assess any injustice caused by the delays.

Analysis

14. Ms X asked the Council to carry out Y’s EHC needs assessment in mid-February 2024. The Council’s timescales were:
• for taking decision whether to carry out Y’s EHC needs assessment – the end of March;
• for taking decision not to issue an EHC Plan for Y – the second week of June;
• for Issuing a final EHC Plan for Y – the beginning of July.
15. When Ms X brought her complaint to the Council at both stages, the date for the Council’s decision whether to issue an EHC Plan for Y was not due. The only failings within the timescales at the time of the stage two complaint was the delay in the EP service to provide its advice.
16. Any delay with providing EP advice in itself would not be significant enough to justify our involvement.
17. Ms X told me that the EP had now prepared her advice. The Council confirmed it would issue an EHC Plan for Y. If Ms X wants the Council to address any delays within the EHC Plan process, which occurred after the beginning of June 2024, she needs to raise a new complaint.

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Final decision

18. I will not investigate this complaint. This is because any delays within Y’s EHC needs assessment until the beginning of June 2024 would not have caused sufficient injustice to justify our involvement.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman