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

The complaint

1. Ms X complains about delays in her child, Y’s, Education, Health and Care (EHC) needs assessment. She also says the Council has failed to obtain relevant advice and information during the assessment process. She says as a result, her daughter has missed out on education and the matter has caused her 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)
3. 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.
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, it is likely we would find fault because in its complaint response to Ms X, the Council accepted it had delayed completing Y’s EHC needs assessment. It apologised to Ms X and said the delay was caused by a shortage of Educational Psychologists (EPs).
8. The Ombudsman’s approach is that, although we acknowledge there is a 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 the actions it is taking 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 resolving this complaint by providing a remedy for the uncertainty and distress caused to Ms X by the delays. The Council accepted our invitation.
11. Ms X is also dissatisfied with the information gathered by the Council during the assessment process. We will not investigate this as the assessment process is still ongoing. Once the Council completes the process, Ms X will have a right of appeal to the SEND tribunal if she is unhappy with the Council’s decision or the content of the final plan.

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Agreed action

12. The Council will pay Ms X £100 per month of delay, to be calculated as below.

If the Council decides not to issue Y an EHC Plan

Calculate from 4 June 2024 until the date the Council sends Ms X the letter informing her of its decision.

If the Council decides to issue Y an EHC Plan

Calculate from 3 July 2024 until the date the Council sends Ms X the final EHC Plan.

13. The Council will calculate and pay the remedy to Ms X within one month of sending her either the decision letter (if the decision is not to issue) or the final EHC Plan.

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Final decision

14. We have upheld Ms X’s complaint because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman