Summary: We will not investigate Ms X and Mr Y’s complaint about delays in the Education Health and Care Plan process. This is because the Council has agreed to apologise to Ms X and Mr Y and pay them £100 per month for the delay. We consider this an appropriate remedy and further investigation is therefore unlikely to achieve anything more.

The complaint

1. The complainants, Ms X and Mr Y, complain the Council failed to complete the Education, Health and Care (EHC) needs assessment process for their son, Z, in accordance with the statutory deadlines. Ms X and Mr Y requested an assessment on 23 August 2023 and the Council agreed to assess Z’s needs, following their appeal, on 29 December 2023. But the Council has not yet completed the process or decided whether to issue Z an EHC Plan.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’  and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
3. 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)

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How I considered this complaint

4. I considered information provided by Ms X and Mr Y and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Councils are required to consider applications for EHC needs assessments in accordance with statutory timeframes. Councils must decide whether to carry out an assessment within six weeks, decide whether to issue an EHC Plan within 16 weeks and issue the final Plan, where required, within 20 weeks.
7. The Council initially refused to carry out an assessment for Z but Ms X and Mr Y appealed against the decision. On 29 December 2023, prior to the appeal hearing, the Council conceded the appeal and agreed to assess Z. This decision re-started the clock at week 6. The Council should therefore have told Ms X and Mr Y if it intended to issue Z an EHC Plan by 8 March 2024 and, if it decided to issue a Plan, it should have finalised this by 5 April 2024.
8. To date the Council has not reached a decision about whether to issue Z an EHC Plan and can provide no timescale for its decision on this point.
9. The Council has accepted delay in completing Z’s assessment and deciding whether to issue him an EHC Plan. It has explained that a lack of Educational Psychologists has contributed to the delay. The failure to issue a decision amounts to service failure.
10. We are satisfied the Council is taking action to deal with the issues caused by a lack of Educational Psychologists. In response to our findings in a previous case it sent us an action plan of its service improvements.
11. The Council has agreed to the following actions to remedy Ms X and Mr Y’s complaint:
• Apologise to Ms X and Mr Y for the delay in the EHC Plan process;
• Pay Ms X and Mr Y £100 for each month of delay. In the event the Council decides to issue Z an EHC plan this should be calculated from 5 April 2024 until the date the final Plan is issued. If it decides not to issue a plan, the amount should be calculated from 8 March 2024 until the Council notifies Ms X and Mr Y of its decision. The Council will make this payment within four weeks of sending Ms X and Mr Y the final EHC Plan, or notifying them of its decision not to issue a Plan.
12. I consider the remedy agreed by the Council is suitable and that it is taking steps to address the issue at the heart of this complaint. It is therefore unlikely investigation would achieve anything more for Ms X and Mr Y.

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Final decision

13. We will not investigate this complaint. This is because the Council has agreed a suitable remedy for the injustice caused by its delay.

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Investigator's decision on behalf of the Ombudsman