Summary: We will not investigate Ms X’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 pay her £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 complainant, Ms X, complains the Council failed to complete the Education, Health and Care (EHC) needs assessment process for her son, Y, in accordance with the statutory deadlines. Ms X requested an assessment but the Council declined the request, so Ms X appealed. The Tribunal ordered the Council to carry out an assessment on 14 February 2024 but the Council has not yet completed the process or decided whether to issue Y 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)

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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

7. I considered information provided by Ms X and the Council.
8. I considered the Ombudsman’s Assessment Code.
9. 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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My assessment

10. When the SEND Tribunal orders a council to carry out an EHC needs assessment the council has two weeks to comply with the decision and begin the assessment.
11. The SEN Code of Practice sets out the relevant timescales which apply for the assessment process and where the Tribunal has ordered an assessment the process begins at Week 7. This means the council has 10 weeks to decide whether to issue an EHC Plan and a further four weeks to issue the final Plan, if applicable.
12. The Council should therefore have told Ms X if it intended to issue Y an EHC Plan by 8 May 2024 and, if it decided to issue a Plan, it should have finalised this by 5 June 2024. To date the Council has not reached a decision about whether to issue Y an EHC Plan but it confirms it has now allocated an Educational Psychologist to the case and their advice is due by 11 December 2024.
13. We cannot investigate any delay caused by the original decision not to carry out an EHC needs assessment for Y, including the time taken to appeal the decision to the SEND Tribunal. This is because this stems from the decision itself and Ms X has exercised her right of appeal against it. The exclusion set out at Paragraph 5 therefore applies.
14. The Council has however accepted delay in completing Y’s assessment and deciding whether to issue him an EHC Plan following the Tribunal’s decision. It has explained that a lack of Educational Psychologists has contributed to the delay. The failure to issue a decision amounts to service failure.
15. 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.
16. The Council has agreed to the following actions to remedy Ms X’s complaint:
• Apologise to Ms X for the delay in the EHC Plan process;
• Pay Ms X £100 for each month of delay. In the event the Council decides to issue Y an EHC plan this should be calculated from 5 June 2024 until the date the final Plan is issued. If it decides not to issue a plan, the amount should be calculated from 8 May 2024 until the Council notifies Ms X of its decision. The Council will make this payment within four weeks of sending Ms X the final EHC Plan, or notifying her of its decision not to issue a Plan.
17. 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.

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Final decision

18. 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