Summary: We will not investigate this complaint that the Council delayed carrying out an Education, Health and Care needs assessment. The Council has accepted there were delays connected with a shortage of educational psychologists. It has now agreed to suitable remedies.

The complaint

1. Dr X complains the Council delayed completing an Education, Health and Care (EHC) needs assessment within statutory timescales because of a shortage of educational psychologists (EP). Dr X is unhappy the Council refused to consider funding a private EP to avoid further delays.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. 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
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

3. 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 law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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How I considered this complaint

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

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My assessment

7. In October 2024, following mediation, the Council agreed to carry out an EHC needs assessment for Dr X’s child, B.
8. In February 2025, Dr X complained to the Council. Dr X said the Council had failed to complete the EHC needs assessment within the statutory timescales.
9. If we were to investigate, it is likely we would find fault causing Dr X injustice because the Council accepts it failed to complete the EHC needs assessment within the statutory timescales due to a shortage of EPs. The Council agreed to carry out the EHC needs assessment in late October 2024. This meant it should have issued a decision about whether it will agree to issue a Plan or not within 16 weeks of this date, and if it agrees to issue a Plan, it has a further four weeks to do so (a total of 20 weeks). Both of these decisions trigger SEND Tribunal appeal rights for Dr X. At the time of Dr X’s complaint to the Ombudsman, the Council’s appealable decision remained outstanding. It has apologised to Dr X, which partly remedies the injustice experienced. However, I do not consider this sufficiently remedies the injustice.
10. The Council has now agreed to carry out the following actions within one month of the final decision:

• issue a decision to Dr X to say whether or not an EHC Plan is needed;
• pay Dr X £100 a month from mid-February 2025 to the point it issues its decision letter if it goes on to refuse to issue an EHC plan; or,
• pay Dr X £100 a month from mid-March 2025 until a final Plan is issued if it plans to issue an EHC plan, ongoing for a maximum of six months.

11. I am satisfied the above remedies suitably remedy the injustice Dr X and his family experienced.
12. We will not investigate Dr X’s complaint about the Council arranging an online EP assessment and its refusal to fund a private in-person EP assessment. The Council has explained it has taken this action as a quicker way of assessing B given the shortage and lack of availability of in-person assessments. Based on the evidence I have seen, the Council decided against arranging a private in-person EP assessment because it is satisfied with its commissioning arrangement for the online assessment. There is not enough evidence of fault in the Council’s decision-making to justify an investigation.
13. If Dr X is unhappy with the quality of the EP assessment, it is reasonable to expect him to first raise this with the Council. If Dr X is unhappy with the Council’s final complaint response, it is open to him to make a fresh complaint to the Ombudsman.
14. Dr X complains B is unable to attend preschool due to the delays and B is not accessing the right preparation for school. The Council is only under a duty to secure special educational provision for B if it decides to issue an EHC Plan. Its duty to secure the provision arises once it issues a final Plan. If the Council decides to issue a Plan, we could not, even on the balance of probabilities, estimate what provision, if any, B might have got. Further investigation of this matter is unlikely to lead to a different outcome.
15. Similarly, the Council’s duty to arrange suitable full-time education for children who cannot attend school due to, for example, illness or other reasons, only applies to children of compulsory school age. B is below compulsory school age meaning the Council’s duty does not apply here. For these reasons, there is not enough evidence of fault by the Council to justify investigating.

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Final decision

16. We will not investigate this complaint that the Council delayed carrying out an Education, Health and Care needs assessment. The Council has accepted there were delays connected with a shortage of educational psychologists. It has now agreed to suitable remedies.

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Investigator's decision on behalf of the Ombudsman