Summary: We upheld Mrs X’s complaint about delays in the Education, Health and Care plan process. The Council agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused by the delay.

The complaint

1. Mrs X complained the Council failed to complete an Education, Health and Care (EHC) needs assessment for her child, Y, within the statutory timescales. Mrs X said the matter caused her distress and uncertainty.

Back to top

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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. If we investigated this complaint, we would likely find fault because:
• Mrs X asked the Council to complete an EHC needs assessment for Y in December 2023. To date, the EHC needs assessment has yet to be completed.
• In its complaint response to Mrs X, the Council accepted it had delayed completing Y’s EHC needs assessment. It said the delay was caused by a shortage of Educational Psychologists (EPs).
• If the Council decides not to make an EHC Plan for Y, it should have made the decision within 10 weeks of the decision to assess (week 16 of the statutory timescales). Or, if the Council decides to make an EHC Plan for Y, it should have done so within 14 weeks of the decision to assess (week 20 of the statutory timescales).
7. The Ombudsman’s approach is that, although we acknowledge the national shortage of EPs, a failure to complete the EHC needs assessment process within the statutory timescales is fault. Where we are satisfied the Council has plans in place to address the shortage of EPs, we would likely find fault due to “service failure”. Service failure can happen when an organisation fails to provide a service as it should have done due to circumstances beyond its control.
8. During a recent investigation by us about similar matters, the Council provided evidence of action it is taking to address the shortage of EPs. As a result, further investigation is unlikely to result in additional recommendations because the Council is already acting to resolve the issues.
9. We therefore asked the Council to consider remedying the injustice caused to Mrs X by the delays.

Back to top

Agreed action

10. The Council agreed to:
• write to Mrs X and apologise for the frustration and uncertainty caused by the delays in the EHC process; and
• if the decision is to refuse to make an EHC Plan for Y, pay Mrs X £100 per month of delay, calculated from 4 April 2024, until the decision letter is sent; or
• if the decision is to make an EHC Plan for Y, pay Mrs X £100 per month of delay, calculated from 2 May 2024, until the final EHC Plan is sent.
11. The Council agreed to complete the above actions within one month of the appealable decision being sent by Mrs X.

Back to top

Investigator's decision on behalf of the Ombudsman