Summary: We will not investigate this complaint about the Education, Health and Care plan process. This is because the Council has agreed to an appropriate remedy for the injustice caused by the delay. It is reasonable for Mrs X to appeal to the First-tier Tribunal (Special Educational Needs and Disability) if she wants to challenge the content of the Education, Health and Care Plan.

The complaint

1. Mrs X complained about delay in the Education, Health and Care Plan (EHC Plan) process. Mrs X says the Council failed to meet the relevant timescales in the SEN Code of Practice. Mrs X also complained about the information the Council requested as part of the EHC Plan process.

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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)
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.
6. 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

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

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My assessment

9. Mrs X asked the Council to assess her child for an EHC Plan on 27 February 2024. The deadline for issuing a final EHC Plan was 16 July – week 20 of the process.
10. The Council has accepted it has taken longer than it should to complete the process due to a shortage of Educational Psychologists. This is service failure. This has caused Mrs X frustration and distress.
11. The Council has previously assured the Ombudsman of the actions it is taking to address delays in the EHC Plan process. We are therefore satisfied the Council has a plan to address this issue.
12. In cases like this we consider a payment of £100 to be a suitable remedy for each month of delay. We therefore asked the Council to remedy the injustice caused by making a payment to Mrs X to resolve the complaint early. The Council has agreed to the following to remedy Mrs X’s complaint.
• Pay £100 for each month of delay in issuing the final EHC Plan.
13. The Council should make the payment within four weeks of issuing the EHC Plan.
14. Mrs X is also concerned about the information the Council requested as part of the EHC Plan process. The resultant injustice from this would be an EHC Plan which does not meet her child’s needs. If Mrs X thinks that is the case, then she can use her right of appeal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge the content of an EHC Plan. The SEND Tribunal can decide if an EHC Plan should be changed and if further assessments should be carried out. These are not decisions the Ombudsman can take. The SEND Tribunal could give Mrs X the outcome she wants. It is therefore reasonable for her to appeal if she wants to challenge the eventual content of the EHC Plan.

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Final decision

15. We will not investigate Mrs X’s complaint because the Council has offered a suitable remedy for the identified injustice. It is reasonable for Mrs X to appeal to the SEND Tribunal if she wants to challenge the content of her child’s EHC Plan.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman