Summary: We upheld Mr X’s complaint about delays in the Education, Health and Care process regarding his child, Y, after the Council conceded before a SEND Tribunal hearing was held. The Council agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused.

The complaint

1. Mr X complained the Council delayed completing an Education, Health and Care (EHC) needs assessment of his child, Y, after the Council conceded before a SEND Tribunal hearing was held.
2. Mr X said the matter caused him distress and uncertainty.

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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. 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.
5. 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

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. If we investigated this complaint, we would likely find fault because:
• Mr X asked the Council to assess his child, Y, for an EHC Plan in July 2023. The Council wrote to Mr X in August 2023 and told him it would not assess Y. Mr X appealed the decision to the SEND Tribunal.
• In January 2024, before it sent information to the SEND Tribunal, the Council conceded and agreed to assess Y for an EHC Plan.
• To comply with SEND regulation 45, if the Council decides not to make an EHC Plan for Y, it should have done so within 10 weeks of notifying the Tribunal it would not oppose the appeal - by 08 April 2024.
• If the Council decides to make an EHC Plan for Y, it should have done so within 14 weeks of notifying the Tribunal - by 06 May 2024.
• In its complaint response to Mr X, the Council accepted it had delayed completing Y’s EHC needs assessment. It apologised to Mr X and said the delay was caused by a shortage of Educational Psychologists (EPs).
9. 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.
10. 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.
11. We therefore asked the Council to consider remedying the injustice caused to Mr X by the delays.

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Agreed action

12. The Council agreed to:
• write to Mr X and apologise for the frustration and uncertainty caused by the delays in the EHC process; and
• if the decision is not to make an EHC Plan: pay Mr X £100 per month of delay, calculated from 08 April 2024 until the decision letter is sent; OR
• if the decision is to make an EHC Plan: pay Mr X £100 per month of delay, calculated from 06 May 2024 until the final EHC Plan is sent.
13. The Council agreed to complete the above actions within one week of an appealable decision being sent to Mr X.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman