Summary: We will not investigate this complaint about delay and other issues with 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. We will not investigate the other issues as they are best considered by other bodies, or it is unlikely we could add anything to the Council’s response.

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 has raised other concerns which include the Educational Psychology advice received by the Council, the consultation process, and issues with communication.

Back to top

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. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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. We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), 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)

Back to top

How I considered this complaint

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

Back to top

My assessment

10. Mrs X asked the Council to assess her child for an EHC Plan on 21 February 2024. The deadline for issuing the final EHC Plan was 10 July – week 20 of the process. The Council eventually issued a final EHC Plan on 19 December – just over five months late.
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 £500 for the five months of delay in issuing the final EHC Plan.
14. The Council should make the payment within four weeks of this decision.
15. In her complaint to the Council Mrs X raised several other issues. These are listed below along with the reasons we will not investigate:
• The Council taking two months to go from a draft to a final EHC Plan. The main delay in this case is down to EP shortages. The Council issued the final EHC Plan 10 weeks after receiving the original EP advice on 07 October and 6 weeks after receiving revised EP advice on 09 November 2024. Once a council receives advice from such professionals it has eight weeks to issue a final EHC Plan. There is not enough evidence of delay for reasons other than EP shortages to warrant us investigating.
• Concerns about a data breach. This is a matter for the ICO, not the Ombudsman.
• EPs not being allocated in chronological order. The Ombudsman is satisfied the Council has a plan to deal with the shortages of EPs.
• Issues with the original EP advice received and the Council’s failure to properly seek Occupational Therapy advice. Mrs X challenged the original EP advice which led to further professional input. We could not achieve anything more and if Mrs X wanted to challenge the content of the EHC Plan it was reasonable for her to appeal to the SEND Tribunal.
• Issues with the EHC Plan not being sent. This was emailed to Mrs X in January 2025. An investigation could not add to this
• The Council refusing to meet after the draft EHC Plan was issued. The Council has apologised for this and said it was down to a lack of staff. We could not achieve anything further.
• The Council failing to consult with Mrs X’s preferred school until she insisted. The Council has said it consulted with this school once it became aware of Mrs X’s preference. As above, if Mrs X wanted to challenge the EHC Plan it was reasonable to appeal to the SEND Tribunal.
• A lack of contact from the Council about how provision in Y’s EHC Plan can be delivered. The Council has said Y has been absent from school and it is not clear why. It is working with Y’s school about how provision can be delivered. At this stage we could not add anything to the Council’s response and Mrs X should continue to work with the Council and Y’s school.
16. 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.

Back to top

Final decision

17. We will not investigate Mrs X’s complaint because the Council has offered a suitable remedy for the identified injustice at the heart of this complaint. The other issues were best dealt with by other bodies, or it is unlikely we could add anything to the Council’s response.

Back to top

Investigator's decision on behalf of the Ombudsman