Summary: We have upheld this complaint because the Council delayed carrying out an Education Health and Care needs assessment for a child. The Council has agreed to resolve the complaint by providing a suitable remedy.

The complaint

1. Mrs X complains that the Council has delayed completing an Education Health and Care (EHC) needs assessment for her child. She also complains that the Council has failed to properly consider professional advice during the EHC needs assessment.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
3. 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)
4. The First-tier Tribunal (Special Educational Needs and Disability – SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. 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

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

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My assessment

8. If we were to investigate this complaint it is likely that we would find fault. This is because the Council has delayed completing its EHC needs assessment after conceding an appeal to the SEND Tribunal. It says the delay is due to the national shortage of Educational Psychologists.
9. We have recently upheld other complaints about delays with the Council completing EHC needs assessments due to the national shortage of Educational Psychologists and we are satisfied that the Council is taking steps to resolve this issue, and so have therefore not made any further recommendations in regard to this point.
10. However, the delays have caused Mrs X distress in the form of frustration and uncertainty.
11. I therefore asked the Council to make a payment to her of £300 within one month to remedy the distress this has caused to date. I also asked the Council to make a further payment to Mrs X once it issues a final EHC Plan at £100 per month for any further delay, for a maximum of six months. To its credit, the Council agreed.
12. In the event further delay continues beyond six months 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.
13. I will not investigate Mrs X’s complaint that the Council has failed to properly consider professional advice during its EHC needs assessment and include this advice in her child’s EHC Plan. This is because once the Council issues a final EHC Plan Mrs X will have a right of appeal to the SEND Tribunal. Only the SEND Tribunal can order the Council to make the changes to the EHC Plan or seek further advice.

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Final decision

14. We have upheld this complaint. The Council has agreed to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman