Summary: We have upheld this complaint because the Council delayed carrying out an Education Health and Care (EHC) needs assessment for Mrs X’s child. The Council has agreed to resolve the complaint by offering to make a suitable payment to the complainant to remedy the injustice this caused. We cannot investigate the contents of the final EHC plan issued or the education in place. This is because Mrs X has used her right of appeal to a tribunal.

The complaint

1. Mrs X complains that the council delayed completing an Education Health and Care (EHC) needs assessment for her child. She says the Council then named an inadequate final EHC plan and didn’t name a school meaning her child has been without education provision.

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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 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)
3. 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)
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 Tribunal in this decision statement.
5. 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

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

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My assessment

8. I cannot investigate Mr X’s complaint about the contents of the final EHC plan issued by the Council, including its decision to name a type of school rather than a specific school. This is because Mrs X has used her right of appeal to the SEND Tribunal about this. We cannot investigate the education provision in place whilst the Tribunal is considering her appeal because this is not separable from the appeal itself.
9. However, If we were to investigate this complaint it is likely that we would find fault. This is because the Council delayed completing its EHC needs assessment by around a month. It says this is due to the national shortage of Educational Psychologists.
10. We have recently upheld other complaints about delays with the Council completing EHC needs assessments due to the national shortage of Educational Psychologists and we are satisfied that the Council is taking steps to resolve this issue, and so have therefore not recommended anything further recommendations in regard to this point. 
11. However, the delays have caused Mrs X distress in the form of frustration and uncertainty.
12. I therefore asked the Council to apologise to Mrs X and to make a payment to her of £100 within one month to remedy the distress this has caused her. To its credit, the Council agreed.

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Final decision

13. We have upheld Miss X’s complaint. The Council has agreed to resolve the matter by providing a suitable remedy.

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Investigator's decision on behalf of the Ombudsman