Summary: Mr X complained about the Council’s failure to act on his request for a reassessment of his daughter’s Education, Health and Care Plan, failure to provide alternative provision, and delay paying for a Speech and Language Therapy report. We find the Council at fault causing avoidable distress, uncertainty, and denied and delayed appeal rights. The Council has agreed to apologise, make a payment to Mr X, and make service improvements.

The complaint

1. Mr X complained about the Council’s failure to act on his request for a reassessment of his daughter, Y’s Education, Health and Care (EHC) Plan. He also says the Council has failed to provide them with alternative provision whilst out of school and delayed paying for the Speech and Language Therapy (SALT) report for eight weeks.
2. He says this delayed his right of appeal and meant Y missed out on the provision needed.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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 34H(i), as amended)
6. 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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How I considered this complaint

7. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and legislation

EHC Plans and assessment

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
10. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

11. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

Reassessment

12. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
13. The council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment. It can also refuse a request if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
14. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.
15. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.

Alternative provision

16. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
17. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
18. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
19. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

20. In May 2022, Y stopped attending school due to anxiety.
21. In September 2022, Y, who has special educational needs, was issued an Education, Health and Care (EHC) Plan.
22. In November 2023, Mr X reported that Y was experiencing autistic burnout and was unable to engage in any form of education, including online or in-person provision. This continued for around six months.
23. In January 2024, Mr X asked the Council to consider an Education Otherwise Than At School (EOTAS) package for Y. The Council declined, stating there was insufficient evidence to support this.
24. Later that month, Mr X requested a meeting with the school and the Council to discuss reassessing Y’s EHC Plan. He also asked for a new Educational Psychologist (EP) assessment. Initially, the Council asked the school to arrange a review but later agreed to commission an EP assessment.
25. In February, the EP visited Y and completed a written report, which was later amended following concerns raised by Mr X.
26. In May, Mr X contacted the Council again about requesting a reassessment. The Council treated this as a formal request but decided a reassessment was not necessary.
27. Later that month, Mr X raised a complaint about the EP visit, stating that both he and Y had found the visit traumatic, and the report did not reflect Y’s needs or reference the other professional reports completed.
28. In June, Y’s annual review took place, and she began attending an alternative provision for one hour per week.
29. Later that month, a representative acting for Mr X submitted a complaint requesting:
• a delay in issuing the draft EHC Plan following the annual review to allow time for a reassessment;
• reimbursement for a privately commissioned Speech and Language Therapy (SALT) assessment;
• a preliminary decision on the EOTAS request;
• a response to Mr X’s May complaint; and
• clarification on why a reassessment was not agreed in January.
30. In July, the Council received a GP letter confirming Y’s ongoing anxiety, the unlikelihood of her returning to school in the medium term and requesting for EOTAS to be considered.
31. Later that month, the Council responded to the June complaint. It agreed to reassess Y’s EHC Plan (backdating the effective date to June), to commission a SALT assessment, and to consider EOTAS following the reassessment process. It also explained that Mr X had not made a formal EOTAS request in January, which is why a reassessment did not take place at that time.
32. Later in July, Mr X escalated his complaint, stating that he had made a formal EOTAS request in January. He expressed concern that the Council’s failure to consider this request had denied him his right of appeal. He also queried the funding for the SALT assessment and raised concerns about Y’s education from September.
33. In August, a SALT assessment was conducted.
34. Later that month, the Council responded to Mr X’s May complaint, apologised for the distress caused by the EP visit, agreed to use a different EP in the future, and said it would update the EP report to better reflect Y’s needs.
35. In September, Y’s attendance at the alternative provision ended due to an incident. Mr X arranged a new provision which began in October, with Y attending for one hour per week.
36. Later that month, the Council responded to Mr X’s escalated complaint from July. It explained that his January request was to explore options and did not constitute a formal review, which is why no review documentation was completed. However, the Council acknowledged that it should have provided appeal rights in May, following its decision not to reassess Y. It also confirmed that it would fund the private SALT assessment from August.
37. In November, Y’s draft EHC Plan was issued, and Mr X brought his complaint to the Ombudsman.
38. In December, the Council agreed in principle to provide Y with an EOTAS package.
39. In April 2025, the Council issued Y’s final amended EHC Plan.

My findings

Reassessment requests

40. While the Council says there was no formal reassessment request in January 2024, the evidence shows Mr X clearly intended to request both a reassessment and EOTAS. The Council considered the EOTAS request and commissioned an EP assessment, suggesting it was aware of his requests and acting on them. It should have recognised this as a formal reassessment request and issued a decision with appeal rights. Its failure to do so is fault and denied Mr X his right of appeal.
41. In May 2024, the Council did treat Mr X’s contact as a formal reassessment request but decided a reassessment was not necessary. It later acknowledged it failed to issue a formal decision with appeal rights. This is further fault and denied Mr X his right of appeal.

Final amended EHC Plan

42. The Council agreed to a reassessment with an effective date in June 2024. Y’s final amended EHC Plan should have been issued within 14 weeks so in September 2024. However, the Council did not issue the EHC Plan until April 2025, a delay of six months. This is fault and caused Mr X distress, uncertainty and further delayed his right of appeal.
43. The SALT assessment was conducted in August, however, the Council paid for the assessment in October and subsequently received the report two weeks later. The time taken by the Council to pay for the assessment resulted in a delay receiving the report. This is fault and contributed to the overall delay in issuing the EHC Plan.

Alternative provision

44. Between November 2023 and June 2024, Y was unable to access any education provision due to autistic burnout. From June, she began attending an hour of alternative provision per week, but this ended in September. Mr X arranged a new alternative provision which started in October for one hour per week.
45. The Council says it provides bespoke alternative provision, however, it has not provided evidence of how it assessed Y’s individual needs or considered what would constitute suitable full-time equivalent education in her case. The Council also failed to keep Y’s provision under review or consider increasing her hours over time. This is fault. While I can not say, even on the balance of probabilities, whether Y would have been able to or willing to engage in increased hours, this has caused uncertainty.

Complaint handling

46. The Council failed to respond to any of the complaints within its published timescales of 10 working days for stage one and 20 working days for stage two. It took 46 working days to respond to the May complaint, 21 working days to respond to the June complaint, and 40 working days to respond to the stage two escalation. A combined delay of 67 working days, this is fault and caused Mr X uncertainty and distress.

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Action

47. To remedy the injustice caused by the above faults, within four weeks of the date of our final decision, the Council has agreed to:
• apologise to Mr X in line with our guidance on Making an effective apology;
• pay Mr X £500 to recognise the distress and uncertainty caused by the Council’s failure to consider his reassessment request and provide appeal rights, failure to review the alternative provision, and delay in issuing the EHC Plan; and
• pay Mr X £100 to recognise the time and trouble caused by the delay handling his complaints.
48. Within three months of the date of our final decision, the Council has agreed to:
• review its procedures for recognising and responding to reassessment requests under the SEND regulations, ensuring written decisions are provided with clear appeal rights;
• review how it assesses and records decisions on alternative provision, ensuring provision is sufficient and suitable for individuals needs under Section 19 of the Education Act 1996, and is properly documented and reviewed; and
• remind relevant officers of the statutory timescales for EHC needs assessments and the importance of timely commissioning and payment of specialist assessments.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman