Summary: We have upheld this complaint because the Council delayed carrying gout 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 will not investigate the Council’s decision not to issue an EHC Plan because it is reasonable for the complainant to use their right of appeal to a tribunal.

The complaint

1. Mrs X complains that the Council took too long to carry out an Education Health and Care (EHC) needs assessment for her son and then refused to issue an EHC Plan. Mrs X wants the Council to issue a final EHC Plan

Back to top

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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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.

Back to top

How I considered this complaint

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

Back to top

My assessment

8. If we were to investigate this complaint it is likely that we would find fault. This is because the Council delayed completing an EHC needs assessment which has caused Mrs X distress in the form of frustration and uncertainty.
9. The Council has said that the delays are caused by a national shortage of educational psychologists. We have previously found that the Council has made service improvements to respond to the increased demand for EHC needs assessments and to manage the shortage of Educational Psychologists. I am satisfied with these service improvements and so have therefore not recommended anything further here. 
10. The Council has apologised to Mrs 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 £200 to remedy the distress this has caused her.
11. I will not investigate Mrs X’s complaint about the Council’s decision not to issue an EHC Plan. This is because Mrs X has a right of appeal to the SEND Tribunal against the decision, and it is reasonable to expect Mrs X to use that right. Only the SEND Tribunal can instruct the Council to reverse their decision and issue an EHC Plan.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman