Summary: We have upheld this complaint because the Council delayed carrying out an Education Health and Care (EHC) needs assessment. The Council has agreed to resolve the complaint by offering to make a suitable payment to the complainant to remedy the injustice this cause. We cannot investigate the Council’s previous decisions not to assess or issue a EHC Plan, because the complainant used their right of appeal to a tribunal.

The complaint

1. Miss X complains about how the Council has dealt with a request for an Education Health and Care (EHC) needs assessment for her son. Miss X says the Council initially refused to carry out an assessment and then refused to issue an EHC plan. She says despite successfully appealing the Council’s decisions, it has delayed issuing a final EHC plan.

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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 must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.

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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. I cannot investigate the Council’s initial decisions not to carry out an EHC needs assessment or its decision not to issue an EHC Plan. This is because Miss X used her right of appeal to the SEND Tribunal, placing these decisions outside of the Ombudsman’s jurisdiction.
9. However, if we were to investigate this complaint it is likely that we would find fault. This is because the Council delayed completing finalising an EHC Plan after conceding Miss X’s appeal in December 2023. This has caused Miss X distress in the form of frustration and uncertainty. The final EHC plan has now been issued.
10. We have recently recommended that the Council has make service improvements in regards to completing EHC needs assessments on time. I am satisfied with these service improvements and so have therefore not recommended anything further here. 
11. The Council has apologised to Miss X for the delay. However, I did recommend the Council provide a payment to Mrs X to remedy the distress caused to her by its delays. To its credit, the Council agreed to my recommendation. Therefore, within one month of the date of this final decision, it will offer to make a payment to her of £300 to remedy the distress this has caused her.

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Final decision

12. We have upheld this complaint. The Council has agreed to resolve the complaint early by providing an appropriate remedy.

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Investigator's decision on behalf of the Ombudsman