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

The complaint

1. Miss X complained about delays in the Education, Health and Care (EHC) needs assessment of her child, Y, following a Mediation Agreement.
2. Miss X said the matter has caused her 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. 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

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

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My assessment

7. If we investigated this complaint, we would likely find fault because:
• Miss X asked the Council to complete an EHC needs assessment of Y, and the Council refused to assess in September 2023. Miss X and the Council entered mediation. In October 2023 a Mediation Agreement was made and the Council agreed to reconsider Miss X’s request and decide whether to assess Y by 10 November 2023. The Council wrote to Miss X on 17 November 2023 and agreed to assess Y. Therefore, the Council should have completed the EHC process in line with Regulations 42 and 45 of the SEND Regulations.
• In its complaint response to Miss X, the Council accepted it had delayed completing Y’s EHC needs assessment. It said the delay was caused by a shortage of Educational Psychologists (EPs).
• If the Council does not make an EHC Plan for Y, it should have made the decision within 10 weeks of the decision date agreed in the Mediation Agreement, by 19 January 2024. Or, if the Council decides to make an EHC Plan for Y, it should have done so within 14 weeks of the decision date agreed in the Mediation Agreement, by 16 February 2024.
8. 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.
9. 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.
10. We therefore asked the Council to consider remedying the injustice caused to Miss X by the delays.

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Agreed action

11. The Council agreed to:
• write to Miss X and apologise for the frustration and uncertainty caused by the delays in the EHC process; and
• if the decision is to refuse to make an EHC Plan for Y: pay Miss X £100 per month of delay, calculated from 19 January 2024, until the decision letter is sent; OR
• if the decision is to make an EHC Plan for Y: pay Miss X £100 per month of delay, calculated from 16 February 2024, until the final EHC Plan and decision letters are sent.
12. The Council agreed to complete the above actions within one week of the appealable decision being sent to Miss X.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman