Summary: We upheld part of Mrs X’s complaint about how the Council handled her child’s Education and Health Care Plan. The Council agreed to resolve the complaint early by paying Mrs X a symbolic payment to acknowledge the injustice caused. We will not investigate the remaining issues complained about as we are unlikely to find fault in relation to some of the issues and Mrs X has used her right to appeal.

The complaint

1. Mrs X complains the Council delayed completing her child Y’s Education, Health and Care Needs Assessment (EHCNA) and issuing a final Education, Health and Care Plan (EHCP). Mrs X says the Council apologised but blamed the delay to a shortage of Educational Psychologists (EP). She says she had to repeatedly contact the EP for clarification because the draft EHCP was unclear and lacked enough detail.
2. Mrs X has appealed the content of the EHCP to the SEND Tribunal. She says the delay and poor communication caused avoidable stress and left Y without suitable support. She wants the Council to improve its service to prevent similar issues affecting other families.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and s34H(1), as amended)

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How I considered this complaint

8. I considered information provided by Mrs X and the Council.
9. I considered the Ombudsman’s Assessment Code.
10. 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

11. The Council refused Mrs X’s request for an EHCNA within the six-week statutory timescale. Mrs X sought mediation and the Council overturned its decision. The Council arranged the mediation meeting within the required thirty-days. The meeting took place about one month later due to availability issues on both sides. On this basis, I am unlikely to find fault with this part of Mrs X’s complaint. The Council took reasonable steps to arrange the meeting within the statutory timeframe.
12. Following agreement to carry out the EHCNA, the Council told Mrs X it would get EP advice within six weeks, although it warned of possible delays due to capacity. Shortly before the deadline, the Council offered a virtual EP assessment because of long waiting times for an in-person assessment. Mrs X agreed so Y could access support sooner. The EP assessment took place around two weeks later than expected. While this reflects service pressure, a shortage of EPs does not remove the Council’s duty to complete the assessment process within statutory timescales.
13. The Council issued Y’s final EHCP, one month after the 20-week statutory deadline. This delay caused the family frustration and uncertainty. We therefore asked the Council to consider remedying the injustice caused to Mrs X by its delay issuing the final EHCP.
14. Mrs X complained the final EHCP did not meet Y’s needs. Mrs X has appealed to the SEND Tribunal. Therefore, we cannot investigate this part of Mrs X’s complaint.

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Agreed action

15. To remedy the injustice caused, within four weeks of the final decision, the Council has agreed to:
• Make a symbolic payment of £100 to Mrs X for the uncertainty caused to the family by the delay.

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Final decision

16. We have upheld part of this complaint, and the Council has agreed to resolve it early by providing a proportionate remedy for the injustice caused to Mrs X. We will not investigate the remaining issues complained about as we are unlikely to find fault. Mrs X has also used her right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman