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. Mrs 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. Y’s school requested an assessment on 8 January 2024 but the Council decided at that time not to carry one out. It reversed its decision and agreed to carry out an assessment on 12 April 2024 but it has not yet completed the process or decided whether to issue Y an EHC Plan.

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. 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.

Back to top

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).

Back to top

My assessment

10. We cannot look at any delay over the period between January 2024 and April 2024. This is because the Council initially decided not to carry out an EHC needs assessment= and this decision carried a right of appeal to the SEND Tribunal which it would have been reasonable for Mrs X to use. We can only consider the delay following the Council’s decision to assess on 12 April 2024.
11. The SEN Code of Practice sets out the relevant timescales which apply for the assessment process and where the Council initially decides not to carry out an assessment but later changes 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, if applicable.
12. The Council should therefore have told Mrs X if it intended to issue Y an EHC Plan by 21 June 2024 and, if it decided to issue a Plan, it should have finalised this by 19 July 2024. To date the Council has not reached a decision about whether to issue Y an EHC Plan.
13. The Council has accepted delay in completing Y’s assessment and deciding whether to issue him 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.
14. 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.
15. 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. In the event the Council decides to issue Y an EHC plan this should be calculated from 19 July 2024 until the date the final Plan is issued. If it decides not to issue a plan, the amount should be calculated from 21 June until the Council notifies Mrs X of its decision. The Council will make this payment within four weeks of sending Mrs X the final EHC Plan, or notifying her of its decision not to issue a Plan.
16. 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.

Back to top

Final decision

17. We will not investigate this complaint. This is because the Council has agreed a suitable remedy for the injustice caused by its delay.

Back to top

Investigator's decision on behalf of the Ombudsman