Summary: We will not investigate this complaint about 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.

The complaint

1. Mrs X complained about the delay in the Education, Health and Care (EHC) Plan process. Mrs X says the Council failed to meet the relevant timescales in the SEN Code of Practice. Mrs X says her child’s educational needs are currently not being met.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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:
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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)
6. 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)
7. 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

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

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My assessment

10. Mrs X asked the Council to assess her child on 25 September 2024. If the Council decided not to issue an EHC Plan, it should have made the decision by 15 January 2025 – week 16 of the process. If the Council decided to issue an EHC Plan, it should have done so by 12 February 2025 – week 20 of the process. process.
11. The Council upheld Mrs X’s complaint and explained the delay was due to a shortage of Educational Psychologists (EPs). 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 Mrs X £100 for each month of delay until it issues a refusal decision or a final EHC Plan. Payments should continue for 6 months or until a decision is made or an EHC Plan is issued. If there is no final Plan or decision six months after the date of this decision, Mrs X can return to the Ombudsman with her complaint.
14. The Council should make the payment within four weeks of whichever option it decides.
15. The Council has agreed a suitable remedy and is taking steps to address the issue at the heart of this complaint. We will not therefore investigate.

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Final decision

16. We will not investigate Mrs X’s complaint because the Council has offered a suitable remedy for the identified injustice.

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Investigator's decision on behalf of the Ombudsman