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.

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 is unhappy the Council refused her original request and says its refusal to request an Occupational Therapy (OT) assessment contributed to the delay. Mrs X appointed an SEN specialist to help challenge the Council.

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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. 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)
4. 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.
5. We do not start or continue an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. 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)
7. 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

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

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My assessment

10. The Council agreed to assess Mrs X’s child for an EHC Plan on 23 August 2024. If the Council decided not to issue an EHC Plan, it should have made the decision by 01 November - week 16 of the process. If the Council decided to issue an EHC Plan, it should have done so by 29 November – week 20 of the process.
11. 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.
12. 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.
13. 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 until it issues a refusal decision or a final EHC Plan.
14. The Council should make the payment within four weeks of whichever option it decides.
15. We will not consider Mrs X’s complaint about the Council’s original decision not to assess her child for an EHC Plan. That is because Mrs X had the right to appeal the Council’s refusal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. It would have been reasonable for Mrs X to use that right if the Council had not changed its decision.
16. We will also not consider Mrs X’s complaint the Council refused to commission an OT report. The Council eventually agreed to Mrs X’s request and so we could not achieve anything more. It is also the shortage of EPs which has led to the delay, not the Council’s refusal to request an OT report. Any injustice from this point is not significant enough to warrant an investigation. Also, if the Council had not requested an OT report, the subsequent injustice would have been about one of two issues. Either the Council’s decision not to issue an EHC Plan, or alternatively, the content of an EHC Plan. Again, these are issues which could have been challenged via the SEND Tribunal.
17. The Council has agreed a suitable remedy and is taking to steps to address the issue at the heart of this complaint. We will not therefore investigate.

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Final decision

18. We will not investigate Mrs X’s complaint because the Council has offered a suitable remedy for the identified injustice.

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Investigator's decision on behalf of the Ombudsman