The Ombudsman's final decision
Summary: We have upheld this complaint about delays in the Education Health and Care plan process. This is because the Council has agreed to an appropriate remedy for the injustice caused to the complainant by its delay.
The complaint
Ms X complains about the Council’s delay in the Education, Health and Care (EHC) assessment process. She says the Council has failed to meet the relevant timescales in the SEN Code of Practice.
The Ombudsman’s role and powers
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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms X applied for an EHC needs assessment for her child on 25 April 2023. The Council should have completed the assessment process and told Ms X if it intended to issue a EHC plan within 16 weeks of the initial request. If it decided to issue an EHC plan it should have done so within 20 weeks of the initial request.
The Council has accepted it has taken longer than it should to complete the process due to the shortage of Educational Psychologists. It has still not decided whether to issue a EHC Plan or since issued a EHC plan.
If we were to investigate this complaint it is likely we would find the Council at fault because it has delayed completing the EHC needs assessment process. This delay has caused Ms X distress.
We therefore asked the Council to remedy the injustice caused by its delay by apologising and making a payment to Ms X to resolve the complaint early. We did not recommend service improvements because the Council has previously assured the Ombudsman of the actions it is taking to address delays.
Agreed action
To its credit, the Council has agreed to remedy the complaint by carrying out the following actions within one month of the date of our final decision: Write to Ms X to apologise for the delay in the EHC assessment process.
Pay Ms X £800 for the injustice the delay has caused her to date.
Pay Ms X a further £100 per month for each further month of delay until it issues a decision or EHC Plan.
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.
Final decision
We have upheld Ms X’s complaint because the Council has offered a suitable remedy for the injustice caused by its delay.
Investigator's decision on behalf of the Ombudsman