Summary: We will not investigate Miss X’s complaint about delays in the Education Health and Care Plan process. This is because the Council has agreed to apologise to Miss 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. Miss X requested an assessment on 3 February 2025 but the Council took until 4 June 2026 to issue an EHC Plan. Miss X says the Plan does not properly reflect Y’s needs or provide suitable provision his support.

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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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
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 Tribunal in this decision statement.

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How I considered this complaint

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

10. The Council must carry out needs assessments and give notice of its decision about whether to issue an EHC Plan within 16 weeks from the date of the request for an assessment. If it decides to issue an EHC Plan it must do so within 20 weeks. It should therefore have told Miss X if it intended to issue Y an EHC Plan by 25 May 2025 and, if it decided to issue a Plan, it should have finalised this by 22 June 2025. The Council has now issued Y an EHC Plan but the process took 11.5 months longer than it should have.
11. The Council has accepted delay in completing Y’s assessment and deciding whether to issue him an EHC Plan. It has explained that a lack of Educational Psychologists has contributed to the delay. The failure to issue a decision amounts to service failure.
12. 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.
13. We do however accept the Council’s delays caused Miss X and Y frustration and uncertainty and that this injustice remains unremedied. We have therefore invited the Council to provide a remedy to Miss X and Y and the Council, to its credit, has agreed to our proposal.

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Agreed actions

14. The Council has agreed to the following actions to remedy Miss X’s complaint:
15. Apologise to Miss X for the delay in the EHC Plan process;
16. Pay Miss X £1,150 for the 11.5 months of delay between 22 June 2025 and 4 June 2026.
17. The Council will make this payment within four weeks of today’s date.
18. 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 we would recommend anything more for Miss X and Y.
19. While I appreciate Miss X disagrees with the content of the final EHC Plan this is not an issue I can consider. This is because it would be reasonable for Miss X to appeal to the SEND Tribunal and the restriction at Paragraph 5 therefore applies.

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Final decision

20. 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