Summary: We will not investigate Mrs X’s complaint about delays in the Education Health and Care Plan process. This is because the Council has agreed to apologise to Mrs 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, Mrs X, complains the Council failed to complete the Education, Health and Care (EHC) needs assessment process for her daughter, Y, in accordance with the statutory deadlines.

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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. 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)
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 Mrs 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. The Council initially refused to carry out an EHC assessment but reversed its decision on 8 August 2023.
11. We cannot investigate any delay caused by the original decision not to carry out an EHC needs assessment for Y. This is because this stems from the decision itself and Mrs X had a right of appeal against this which it would have been reasonable for her to use. In this case Mrs X did not use her right of appeal but provided further information to the Council which changed its view.
12. The SEN Code of Practice sets out the relevant timescales which apply for the assessment process; where a council reverses its decision the process begins again 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.
13. The Council should therefore have told Mrs X if it intended to issue Y an EHC Plan by 17 October 2023 and, if it decided to issue a Plan, it should have finalised this by 14 November 2023. The Council confirms it has decided to issue an EHC Plan and it has now sent the draft plan to Mrs X.
14. The Council has accepted delay in completing Y’s assessment and deciding whether to issue her 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.
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 Mrs X’s complaint:
• Apologise to Mrs X for the delay in the EHC Plan process;
• Pay Mrs X £100 for each month of delay. Because the Council has agreed to issue Y and EHC Plan the delay be calculated from 14 November 2023 until the date the final Plan is issued. The Council will make this payment within four weeks of sending Mrs X the final EHC 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 Mrs 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