Summary: We will not investigate Miss X’s complaint about the Council failure to complete her child’s education, health, and care (EHC) needs assessment and final EHC plan within the statutory timescales. This is because the Council agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused.

The complaint

1. Miss X complains the Council:
• Refused to obtain speech and language therapy and occupational therapy assessments as part of her child’s educational, health and care (EHC) needs assessment.
• Did not complete the EHC needs assessment and final EHC plan within the statutory timescales.
• Has not considered her personal budget request.

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The Ombudsman’s role and powers

2. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
3. 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.
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 an investigation if we decide there is no worthwhile outcome achievable by our investigation.(Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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

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. Miss X asked the Council to complete an EHC needs assessment for her child. The Council must issue the final EHC plan within 20 weeks of the date the assessment was requested. This was May 2024.
9. We cannot investigate Miss X’s complaints about the Council’s refusal to obtain speech and language and occupational therapy assessments as part of the EHC needs assessment. This is because the consequence of this claimed fault is that the final EHC plan will not properly reflect her child’s needs and, subsequently, the special education needs provisions outlined in the final EHC plan will not meet her child’s needs. This is a matter that can be appealed to the SEND Tribunal, and it is reasonable to expect Miss X to use her right of appeal.
10. The Council has confirmed it has issued a personal budget. Therefore, an investigation is not justified as it would not lead to any worthwhile outcomes.
11. However, it is likely we would find fault because the Council failed to issue the child’s EHC plan within the statutory timescales as it did not issue the final EHC plan until November 2024. This was a delay of just under six months.
12. I am satisfied the delay will have caused Miss X distress, frustration, and uncertainty. Further, the delay will have frustrated Miss X’s right of appeal.
13. We therefore asked the Council to consider remedying the injustice caused by the likely fault by completing the following:
• Apologise for the delay in issuing the final EHC plan.
• Making a payment of £100 for each month of delay. A total of £600.

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Agreed action

14. The Council agreed to resolve the complaint and will complete the above within four weeks of the final decision.

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Final decision

15. We have upheld this complaint because the Council agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman