Summary: Miss X complained about how the Council handled issues relating to her child, W’s, Education Health and Care (EHC) Plan. The Council was at fault for delay in reviewing W’s EHC Plan, mistakenly referring W for Speech and Language Therapy and for failing to assess Miss X’s needs as a parent carer. This caused Miss X frustration and upset and meant W missed out provision they should have had. To remedy their injustice, the Council will pay Miss X a total of £800 and carry out a parent carer assessment.

The complaint

1. Miss X complained about how the Council handled issues relating to her child, W’s, Education, Health and Care (EHC) Plan. Specifically, Miss X said the Council:
• Delayed finalising W’s first EHC Plan;
• Agreed direct Speech and Language (SALT) for inclusion in W’s Plan before rescinding that agreement shortly after;
• Did not carry out a social care assessment of W’s needs as part of their EHC assessment; and
• Failed to carry out a carers assessment for her.
2. Miss X said this impacted W’s development and caused her significant frustration.

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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. 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 or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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.
6. 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)
7. 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

8. I have considered:
• All the information Miss X provided and discussed the complaint with her;
• The Council’s comments about the complaint and the supporting documents it provided; and
• The relevant law and guidance and the Ombudsman's guidance on remedies.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

10. 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.
11. The sections include:

• Section F: The special educational provision needed by the child or the young person;
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970; and
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. (Where relevant this includes adult social care provision to meet eligible needs under the Care Act 2014).

12. We cannot direct changes to sections F, H1 or H2. Only the SEND Tribunal or the council can do this. 

EHC assessments

13. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following.

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

14. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes social care advice and information. 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.

Annual reviews

15. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.
16. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
17. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Children in need

18. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need. A child is in need if:

• They are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• Their health or development is likely to be significantly impaired unless the council provides support; or
• They are Disabled.

19. Councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. Where a referral is accepted under section 17 the council should lead a multi-agency assessment. This is sometimes called a child and family assessment. Statutory guidance “Working together to safeguard children” says a council’s assessment should:
• Include the views of the child;
• Include the views of relevant professionals involved with the child;
• Explore the needs of all members of the family; and
• Build a full picture of a child’s and their family’s life.
20. The guidance says assessments should be framed in such a way as to explore:
• The child’s developmental needs;
• The capacity of the parents; and
• The wider environmental factors.
21. Where the council’s children’s social care decides to provide services, it should develop a multiagency child in need plan which sets out which organisations and agencies will provide which services to the child and family. (Working Together to Safeguard Children) 

Parent carer assessments

22. Sections 17ZD to 17F of the Children Act 1989 set out that if a council decides a parent carer of a Disabled child may have a need for support, it must carry out a parent carer needs assessment. It must also do so if the parent asks for an assessment. Councils can combine assessments of a child in need with an assessment of the parent carer’s needs.

What happened

23. In early March 2022, Miss X asked the Council to assess her young child, W, for an EHC Plan. The Council agreed to carry out an assessment. As part of that assessment, the Council sought advice from its children’s social care service, an educational psychologist and a SALT.
24. The Council obtained the educational psychologist advice in November 2022 and the SALT advice in February 2023. The SALT recommended some provision for inclusion in W’s EHC Plan. The Council’s children’s social care service confirmed it had no involvement with W and did not make any recommendations for their EHC Plan provision.
25. The Council issued W’s draft EHC Plan in spring 2023. Miss X told the Council she wanted W to have more SALT than was set out in W’s draft EHC Plan. She also said she was unhappy W had not had a full social care assessment as part of the EHC assessment, and that this meant W’s Plan did not include social care provision.
26. In mid-August 2023, the Council told Miss X it had sent a referral to a SALT provider (provider A) for it to begin providing sessions to W, in addition to that in their draft EHC Plan.
27. The Council issued W’s first EHC Plan in late August 2023. The Plan noted W had developmental delays but no diagnosis. The Plan did not include any social care provision. It included the following provision, for delivery at W’s school.
• During the first term, a member of the SALT team would provide guidance for staff on approaches and activities to help W.
• In the second term, a SALT would observe W in sessions and provide feedback.
• During the third term, a member of the SALT team would provide further support and guidance based on the SALT’s feedback.
• A SALT would carry out an hour’s review with W per term, to monitor their progress.
28. In early October 2023, Miss X complained to the Council. She said she had not heard from the Council about the extra SALT provision she wanted W to have, beyond that in their EHC Plan. She added she was unhappy the Council had not completed a social care assessment of W’s needs as part of the EHC assessment.
29. The Council responded to Miss X’s complaint a few days later to say it had asked its children’s social care service to provide advice for W’s EHC Plan as part of the EHC assessment. It also said W would start receiving SALT from provider A that term.
30. Following the Council’s response to Miss X’s complaint, it agreed to carry out a social care assessment of W’s needs in the form of a child and family assessment. It also realised it had made the referral to provider A without having decided whether W should have more SALT in addition to the provision already in their EHC Plan. As a result, the Council cancelled the referral in November 2023 and began identifying a SALT who could assess W’s needs.
31. At the end of the month, Miss X asked for a stage two response to her complaint.
32. In late April 2024, Miss X asked the Council’s children’s social care service to carry out an assessment of her needs as W’s carer. She also complained to the Ombudsman.
33. A SALT assessed W’s needs and in early July 2024, the Council received the new assessment outcome.
34. Around the same time, the Council completed a child and family assessment. The assessment began with a section where the assessor recorded W’s and their sibling’s date of birth, gender, ethnicity and disability status. The form recorded W did not have a recorded disability.
35. The social worker spoke to W and their siblings at home, talked to Miss X and consulted professionals involved with W, including their GP and school. They noted W had an EHC Plan and received disability benefits.
36. The assessor recorded W had speech delay, a diagnosis of social communication disorder and was waiting for a further diagnosis. They noted W’s needs meant they had no awareness of safety, struggled to sleep, did not cope well with changes to their routine and could become aggressive if frustrated.
37. The assessor also considered the needs of W’s siblings in their own right and in relation to W. The assessor explored W’s home life and other familial relationships and gathered information on their experience at school. The assessor spoke to Miss X about her concerns for W and explored what support was already available to her and her children and what else she could do to make things easier. The assessor noted W’s positive interactions with their siblings and Miss X and concluded that Miss X had capacity to meet her children’s needs.
38. The assessment stated a referral for a parent carer assessment had been ‘actioned’ by the Council and concluded that W had suitable support from Miss X and the wider family so there was no need for social care involvement.
39. The Council answered Miss X’s stage two complaint in mid-July 2024. It said:
• It was sorry for making the referral to provider A by mistake. It noted the new SALT had completed their assessment and recommended extra provision for W’s EHC Plan; and
• It was sorry she did not have a carers assessment when she asked for one.
• It offered to make some financial payments in recognition of the impact of faults its investigation had identified. This was £100 for delay issuing W’s first EHC Plan, £100 for mistakenly sending the referral to provider A and for delay in arranging the new SALT assessment. The Council also said it would pay Miss X £100 to recognise her and W’s uncertainty and £50 for delay in responding to her stage two complaint.
40. The Council issued a new draft EHC Plan in late September 2024, which incorporated the SALT recommended by the new assessment. The same day, W’s school held an annual review meeting which recommended further changes to the draft Plan.
41. The Council sent its decision to amend and another amended draft EHC Plan in late November 2024.
42. In late December 2024, Miss X told the Ombudsman she was unhappy. She said:
• The child and family assessment did not result in any support for W, their siblings or her; and
• She had issues with her housing and a Council Occupational Therapist would not be visiting to address them until March 2025.
43. In late January 2025, the Council issued W’s second final EHC Plan. The Plan stated a referral had been made for a parent carer assessment for Miss X. The SALT provision now included:
• 10.5 hours per year of direct sessions with a SALT or senior SALT assistant for the purpose of modelling strategies and activities for members of staff to deliver regularly;
• 10.5 hours per year of indirect sessions. This was for planning SALT interventions for W, training school staff and development of a tailored SALT programme for staff to deliver.
44. Miss X says the Council has still not carried out a carers assessment for her. In response to my enquiries, the Council said it had done the carers assessment as part of W’s social care assessment.

Findings

What I have and have not investigated

45. The courts have established that if someone has appealed to the SEND 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). The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
46. Miss X had a right of appeal to the SEND Tribunal in late August 2023 when the Council issued W’s first EHC Plan. She was unhappy with the SALT and social care provision in that Plan. However, it was not reasonable for her to have used that right because the Council had told her it had referred W to provider A for direct SALT, which is what she wanted in W’s EHC Plan. For that reason, I have investigated Miss X’s complaint about W’s SALT.
47. Parents cannot appeal to the SEND Tribunal to change only the social care provision in their child’s EHC Plan. Therefore, I have also addressed Miss X’s complaint about the social care provision in W’s August 2023 Plan.
48. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
49. After Miss X received her stage two complaint from the Council and after she complained to the Ombudsman, she raised new issues with us. This included her housing. I have seen no evidence Miss X complained to the Council about her housing and it is reasonable for her to do so. Miss X can then make a new complaint to the Ombudsman if she remains unhappy.

Miss X also said she was unhappy with the outcome of the Council’s child and family assessment. This was closely linked to Miss X’s complaint about how the Council assessed W’s social care needs during the EHC assessment so I have considered this issue.

50. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months from first having notice of something to complain to us about what a council has done. “First having notice” is the wording used in our legislation. It means the point in time when we decide the person should have known enough to complain. (Local Government Act 1974, sections 26B and 34D, as amended)
51. The Council must complete EHC assessments within 20 weeks of the date it receives the assessment request. This means the Council should have issued W’s EHC Plan by late July 2022. That is the date Miss X first had notice of the Council’s delay. However, Miss X did not complain to us until over 20 months later (one year and eight months). Therefore, her complaint about the Council’s delay in assessing W for an EHC Plan is late. I have seen no good reason why Miss X could not have complained to us sooner so I cannot investigate that part of her complaint.

EHC assessment and review

52. The Council received W’s SALT assessment and completed their child and family assessment in early July 2024. When the Council decided the SALT assessment showed it should amend section F of W’s EHC Plan, it should have held an early annual review. It is reasonable to expect the Council to have held W’s EHC review meeting within four weeks of receiving the assessment outcome. This would have meant the Council would have issued its decision to amend W’s EHC Plan by early August, and the final amended Plan by early October 2024.
53. The Council did not hold an early annual review, which was fault. Instead, the Council issued its decision to amend W’s EHC Plan in late November 2024, and the final amended Plan in late January 2025. This was a delay of just over 12 weeks (three months). I have addressed Miss X’s and W’s injustice resulting from this fault below.

Speech and Language Therapy

54. The Council was at fault for mistakenly referring W to provider A in August 2023 for additional SALT provision, beyond that in W’s EHC Plan. This caused Miss X upset and frustration when the referral was cancelled in November 2023.
55. After identifying its mistake, the Council sought a new SALT assessment, which it obtained in July 2024. This resulted in increased provision in W’s EHC Plan. The amount of time it took the Council to get a new assessment for W was too long and was fault.
56. However, I cannot say, even on balance, that had the Council obtained the assessment in August 2023 instead of making the referral, it would have resulted in the same provision in W’s EHC Plan. That is because the SALT finished their assessment in July 2024. Children’s needs change very quickly, particularly when they are as young as W. It is likely W’s needs changed between August 2023 and July 2024 so the assessment may not have come to the same or a similar conclusion had it occurred in August 2023. Therefore, I can only say that the faults set out in paragraphs 54 and 55 caused Miss X uncertainty and upset.
57. As set out above, the Council was at fault for its delay in reviewing W’s EHC Plan after it received the SALT assessment report. This meant W missed out on one term’s worth of the increased SALT in their EHC Plan. This affected W directly and caused Miss X frustration and upset.

W’s social care assessment

58. The Ombudsman cannot question a council’s decision if it is made without fault. As part of its child and family assessment, the Council spoke to relevant people including W, their siblings, Miss X and professionals involved with W. The assessment considered W’s needs in context of their family life, Miss X’s parenting capacity and the wider environmental factors. The assessment was in line with the law and statutory guidance and concluded W did not need any social care support. The Council was not at fault in how it came to that decision, so I cannot question the outcome.
59. Because of this, I have not investigated Miss X’s complaint about how the Council gathered social care advice for W’s EHC assessment. Any fault would not have caused Miss X or W a significant personal injustice because when the Council ultimately did carry out an assessment, it did not conclude W needed social care involvement.

Carers assessment

60. Miss X formally asked the Council to carry out a parent carer assessment in April 2024. The Council must carry out a parent carer assessment if a Disabled child’s parent makes the request. The Council’s child and family assessment began by noting W did not have any disabilities recorded. However, it appears the Council accepted W is Disabled because it noted W had speech delay, a diagnosis of social communication disorder and was waiting for a further diagnosis. The assessment conclusion did not argue W was not Disabled, but instead considered whether the existing support for W and their siblings was sufficient, or whether the Council needed to arrange provision to supplement it.
61. The Council told me it did the parent carer assessment as part of its child and family assessment for W. The Council is allowed to do this. However, the officer who carried out the child and family assessment noted that Miss X had been referred for a carer assessment, as did W’s 2025 EHC Plan. This indicates the Council had not decided to combine the assessments. The Council has not yet completed a parent carer assessment for Miss X when it is legally required to do so. This was fault and caused Miss X frustration and uncertainty about what support may be available to her.

Complaints handling

62. The Council was at fault for delay in responding to Miss X’s stage two complaint. It took over eight months to respond, which was an unacceptable delay and which caused Miss X further frustration.

Remedy payments

63. The Council offered to pay Miss X a total of £350 to recognise the impact of the faults it identified as a result of its stage two investigation. £100 of that sum was for delay in carrying out W’s EHC assessment. I have not investigated EHC assessment delay so I have not considered it when deciding what remedy payment the Council should make to remedy Miss X’s injustice. I have decided £400 remedies Miss X’s injustice, stemming from the faults I found. The Council offered £250 in relation to the matters I have investigated. If the Council has already made the £250 payment to Miss X, it should reduce the amount resulting from my investigation to £150.

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Action

64. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Miss X for the injustice she experienced as a result of the faults set out in this decision.
2. Pay Miss X £400 in recognition of her injustice, unless the Council has already made the £250 payment it offered in its complaint response. If it has made that payment, the Council should only pay Miss X a further £150.
3. Pay Miss X £400 to recognise W’s injustice. I recommend this with reference to the Ombudsman’s guidance on remedies.
4. Complete a parent carers assessment for Miss X.
65. The Council will provide us with evidence it has complied with the above actions.

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Decision

66. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman