Summary: We will not investigate this complaint about Mrs X’s complaint about delays in the Education, Health and Care Plan process. This is because the Council has agreed to 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 complained the Council failed to complete the Education, Health and Care (EHC) needs assessment process for her daughter, Y, in accordance with the statutory deadlines. Miss X requested an assessment in early 2024 but the Council refused her request. She made a new application later on, but the Council has not yet completed the process or decided whether to issue Y an EHC Plan

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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. 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 Tribunal in this decision statement.

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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).

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My assessment

10. There are timescales for each stage of the EHC needs assessment process. Councils must consider requests for assessments and decide if they will carry out an assessment within six weeks. They then have a further 10 weeks to decide if they will issue an EHC Plan and if they do, they have a further four weeks to finalise it. The whole process must not exceed 20 weeks.
11. In this case the Council considered Mrs X’s request for an assessment in March 2024 but decided it was not necessary. Mrs X made a new request several months later and the Council agreed to carry out an assessment on 31 October 2024.
12. Once the Council decided to carry out an assessment it should have completed the process and told Mrs X if it intended to issue Y an EHC Plan by 20 February 2025. If it decided to issue a Plan, it should have finalised this by 20 March 2025. 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 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. To remedy the complaint the Council has agreed to 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 20 March 2025 until the date the final Plan is issued. If it decides not to issue a plan, the amount should be calculated from 20 February 2025 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.
17. We will not look at any delay caused by the Council’s initial decision not to carry out an assessment. This is because the decision carried a right of appeal to the First-Tier Tribunal as set out at Paragraph 6 and it would have been reasonable for Mrs X to use this right if she wished to challenge it.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman