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 its delay.

The complaint

1. Mr X complains about the delay in the Education and Health Care (EHC) Plan process. Mr X says the Council failed to meet the relevant timescales in the SEN Code of Practice.

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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 Mr 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. 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.
8. In this case the Council considered Mr X’s request for an assessment in 2023 but decided it was not necessary. Mr X appealed against this decision and the Council agreed to carry out an assessment on 26 June 2024. We cannot consider any delay caused by Mr X’s appeal and I have therefore focused my attention on the time taken by the Council to complete the process after 26 June 2024.
9. Once the Council decided to carry out an assessment it should have completed the process and told Mr X if it intended to issue his child an EHC Plan by 4 September 2024. If it decided to issue a Plan, it should have finalised this by 2 October 2024. But to date the Council has not reached a decision about whether to issue Mr X’s child an EHC Plan.
10. 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.
11. 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.
12. We do however accept the Council’s delays caused Mr X frustration and uncertainty and that this injustice remains unremedied. We have therefore invited the Council to provide a remedy to Mr X and the Council, to its credit, has agreed to our proposal.

Agreed remedy

13. The Council has agreed to the following to remedy Mr X’s complaint.

• Pay £100 for each month of delay until it issues a refusal decision or a final EHC Plan, or until six months from the date of my decision. 
• If the Council decides to issue an EHC Plan, the delay should be calculated from 2 October 2024 until either the date the final EHC Plan is issued, or until 11 May 2026 (whichever comes first). 
• If the Council decides not to issue a plan, the remedy should be calculated from 4 September 2024 until either the Council notifies Mr X of its decision, or until 11 May 2026 (whichever comes first).

14. The Council should make the payment within four weeks of the relevant date.
15. In the event the delay continues beyond 11 May 2026 we would expect Mr X to make a new complaint to the Council. Once the complaint has exhausted the Council’s complaints process, and in the event Mr X remains unhappy, he may refer the complaint to us and we will consider whether to investigate it further. As part of this process we would consider if any further delays were due to the national shortage of Educational Psychologists or from issues elsewhere in the process. This may then warrant a further remedy.
16. The Council has agreed a suitable remedy and is taking to steps to address the issue at the heart of this complaint. We will not therefore investigate.

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Final decision

17. We will not investigate Mr X’s complaint 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