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. The Council agreed to carry out an assessment on 20 August 2024 but has not yet completed the process.

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)

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. Once a council has agreed to carry out a needs assessment it must complete the assessment and decide whether to issue an EHC Plan within 10 weeks. If it decides to issue an EHC Plan it must do so within 14 weeks. It should therefore have told Mrs X if it intended to issue Y an EHC Plan by 29 October 2024 and, if it decided to issue a Plan, it should have finalised this by 26 November 2024.
8. The Council accepts it has failed to comply with these timescales but has explained that a lack of Educational Psychologists has contributed to the delay. The failure to complete the process in accordance with the statutory timescales amounts to service failure.
9. 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.
10. 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

11. 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 the date of this decision (until 15 July 2026).
12. If the Council decides to issue an EHC Plan the delay should remedy should be calculated from 26 November 2024. If the Council decides not to issue a plan, the remedy should be calculated from 29 October 2024.
13. The Council will make this payment within four weeks of issuing Mrs X the EHC Plan, notifying her of its decision not to issue an EHC Plan, or from 15 July 2026 (whichever comes first).
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.
15. In the event the delay continues beyond 15 July 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. 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.

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Final decision

16. 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