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. Mrs X requested an assessment on 19 March 2024 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)

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How I considered this complaint

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

7. The Council must carry out needs assessments and give notice of its decision about whether to issue an EHC Plan within 16 weeks from the date of the request for an assessment. If it decides to issue an EHC Plan it must do so within 20 weeks. It should therefore have told Mrs X if it intended to issue Y an EHC Plan by 9 July 2024 and, if it decided to issue a Plan, it should have finalised this by 6 August 2024.
8. To date the Council has not reached a decision about whether to issue Y an EHC Plan and can provide no timescale for its decision on this point.
9. 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.
10. 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.
11. We do however accept the Council’s delays caused Mrs X and Y frustration and uncertainty and that this injustice remains unremedied. We have therefore invited the Council to provide a remedy to Mrs X and Y and the Council, to its credit, has agreed to our proposal.

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Agreed actions

12. 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 to date and for a maximum of six months from today’s date. If the Council decides to issue an EHC Plan the delay should remedy should be calculated from 9 July 2024 until either the Council notifies Mrs X of its decision, or until 9 April 2026 (whichever comes first). If the Council decides not to issue a plan, the remedy should be calculated from 6 August 2024 until either the date the Council notified Mrs X of its decision, or until 9 April 2026 (whichever comes first).
• The Council will make this payment within four weeks of the relevant date for calculating the remedy, whether this is the date of issue of the final EHC Plan, the date of its decision not to issue a Plan, or 9 April 2026.
13. In the event the delay continues beyond 9 April 2026 we would expect Mrs X to make a new complaint to the Council. Once the complaint has exhausted the Council’s complaints process, and in the event Mrs X remains unhappy, she may refer the complaint to us and we will consider whether to investigate it further.
14. 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.

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Final decision

15. 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