Summary: We will not investigate Mr X’s complaint about the Council’s handling of his request it assess his child for an Education, Health and Care Plan. Mr X’s appeal to the First-tier Tribunal (Special Educational Needs and Disability) places part of the complaint outside our jurisdiction. The Council has apologised and offered a payment for the injustice caused by the ongoing delay. There is nothing more we could achieve by investigating further.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained the Council wrongly refused his request it assess his child for an Education, Health and Care Plan (EHC Plan). Mr X also complained about delay in the process and says the Council has failed to meet the relevant timescales in the SEN Code of Practice.

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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 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)
5. 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))

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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How I considered this complaint

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

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My assessment

9. Mr X asked the Council to assess his child for an EHC Plan. The Council originally refused but changed its decision after Mr X appealed to the Tribunal. Mr X’s appeal to the Tribunal places his complaint outside our jurisdiction until the Council conceded the appeal.
10. If the Council decided not to issue an EHC Plan, it should have sent Mr X a decision by week 16 of the process. If the Council decided to issue an EHC Plan, it should have done so by week 20 of the process.
11. The Council has accepted it has taken longer than it should to complete the process due to a shortage of Educational Psychologists. This is service failure. This has caused Mr 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. The Council has already apologised to Mr X and offered £100 for each month of delay. The Council’s actions are in line with our guidance and there is nothing more we could achieve by investigating the complaint further.

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Final decision

14. We will not investigate Mr X’s complaint. His appeal to the Tribunal places part of the complaint outside our jurisdiction. The Council has now offered a suitable remedy for the ongoing delay, and an investigation would not achieve anything more.

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Investigator's decision on behalf of the Ombudsman