Summary: Ms X complained the Council failed to complete an Educational Psychologist assessment of her child despite it agreeing to do so following the 2023 Education, Health and Care Plan annual review meeting. We found fault with the Council delaying outside the statutory timescales in reviewing Ms X’s child’s Education, Health and Care Plan. We also found fault with the Council delaying completion of an agreed on Educational Psychologist assessment. The Council agreed to pay Ms X £500 for the avoidable uncertainty, frustration and lost opportunity caused by its delays.

The complaint

1. Ms X complained the Council failed to complete an Educational Psychologist assessment of her child it said it would complete following the annual review meeting of her child’s Education, Health and Care Plan in 2023.

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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 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended).
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended).
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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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What I have and have not investigated

8. I have investigated Ms X’s complaint up to 4 July 2024. I have not investigated any matters after 4 July 2024.
9. When the Council decided to maintain Ms X’s child’s EHC Plan on 4 July 2024 this gave Ms X and appeal right to the Special Education Needs and Disability (SEND) Tribunal. If a council refuses to amend an EHC Plan, this is appealable to the SEND Tribunal about the content of the EHC Plan. This includes any concerns about what information and reports a council has obtained to inform the content of the EHC Plan.
10. Should Ms X have any concerns about the content of the Education, Health and Care Plan, including inclusion of any information from the Educational Psychologists report, she would need to approach the SEND Tribunal. The SEND Tribunal is the correct body to consider this matter.
11. I can investigate the Council’s actions up to 4 July 2024. This is because, Ms X no longer has an appeal right to the SEND Tribunal about the 2023 annual review process or Final amended EHC Plan produced in January 2024. While I cannot comment on the content of the EHC Plan itself, I can consider the Council’s actions from June 2023 to 4 July 2024.

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How I considered this complaint

12. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
13. Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

14. An Education, Health and Care Plan (EHC Plan) is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
15. Once the Council completes the EHCP it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
16. Councils should ensure an annual review of the child's EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. An annual review is completed when a council issues a letter advising of intention to cease, maintain or amend an EHC Plan following an annual review meeting.
17. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain the Plan, cease the Plan or amend the Plan.
18. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
19. Where a 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. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
20. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
21. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the Final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
22. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
23. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

What happened

24. Ms X’s child, who I shall refer to as Y, had an EHC Plan.
25. On 17 August 2022, the Council sent a letter to Ms X advising of its decision to amend Y’s EHC Plan. The Council issued an amended Final EHC Plan on 12 October 2022.
26. On 21 June 2023, the Council held an annual review meeting for Y’s EHC Plan. There was a request in the annual review paperwork for the Council to get a cognitive assessment by an Educational Psychologist as part of the decision to amend Y’s EHC Plan.
27. The Council wrote to Ms X on 17 July 2023 and confirmed it would amend Y’s EHC Plan.
28. In September 2023, the Council held discussion about some assessments for Y but failed to follow through on arranging an Educational Psychologist cognitive assessment.
29. On 3 January 2024, the Council issued an amended Final EHC Plan for Y.
30. Ms X made a formal complaint to the Council on 26 February 2024 about its failure to arrange for an Educational Psychologist to complete a cognitive assessment of Y.
31. The Council contacted Educational Psychologist 1 on 27 February 2024 to arrange an assessment of Y.
32. On 19 March 2024, the Council issued a Stage 1 complaint response. The Council said:
• It accepted it failed to commission an Educational Psychologist to assess Y to update Y’s EHC Plan.
• It would commission an Educational Psychologist to assess Y over the summer term in preparation for the next annual review meeting.
33. Ms X sought escalation of her complaint the same date as the Council failed to answer why it did not commission an Educational Psychologist sooner.
34. Educational Psychologist 1 contacted Ms X on 26 March 2024. Following discussions with Ms X Educational Psychologist 1 withdrew its offer to assess Y.
35. On 10 April 2024, the Council issued a Stage 2 complaint response. The Council said:
• When it received the annual review paperwork in 2023 it did not notice the request for an Educational Psychologist assessment. The Council apologised for this error meaning it missed the opportunity to get this assessment sooner.
• When this matter was brought to its attention in the Autumn of 2023 it should have acted but failed to do so.
• It was now looking to secure an Educational Psychologist to assess Y.
36. The Council contacted Educational Psychologist 2 on 18 April 2024.
37. Educational Psychologist 2 contacted Ms X to arrange an assessment for 26 June 2024. This assessment did not take place and needed to be rescheduled for 29 July 2024.
38. On 18 June 2024, the Council completed an annual review meeting for Y’s EHC Plan. The annual review meeting noted the request for an Educational Psychologist assessment remained incomplete.
39. On 4 July 2024, the Council wrote to Ms X to confirm it would maintain Y’s EHC Plan and would not be amending this.
40. Educational Psychologist 2 completed their assessment of Y on 29 July 2024.

Analysis

EHC Plan annual review process

41. Following the Council’s decision to amend letter on 17 August 2022, it had 12 months to complete the next annual review process. This meant it needed to send its next decision letter, following an annual review meeting, by the latest of 16 August 2023.
42. The Council held an annual review meeting for Y’s EHC Plan on 21 June 2023 and sent a decision to amend letter on 17 July 2023. The Council has acted within the statutory timescales for completing this process and I do not find fault.
43. Following the Council sending its decision to amend letter on 17 July 2023, it had eight weeks to issue an amended Final EHC Plan. This meant the Council had until 11 September 2023 to issue the amended Final EHC Plan. The Council failed to meet this timescale and instead only issued the amended Final EHC Plan on 3 January 2024. This was a 16-week delay outside the statutory timescales and was fault.
44. This delay caused Ms X frustration and uncertainty about the content of the EHC Plan and delayed her appeal rights to the SEND Tribunal.
45. Since the Council sent the decision to amend letter on 17 July 2023, it had until 16 July 2024 to complete the next annual review and issue a new letter advising of its decision. The Council completed an annual review meeting for Y’s EHC Plan on 18 June 2024 and sent its decision to maintain Y’s EHC Plan on 4 July 2024. The Council has completed this process within the statutory timescales and I do not find fault.
46. The Council was entitled to decide to maintain Y’s EHC Plan on 4 July 2024. This is not a decision the Ombudsman can question and is a matter for the SEND Tribunal.

Educational Psychologist assessment

47. When a council completes an EHC Plan Needs Assessment to produce a child’s first EHC Plan, it should get input from an Educational Psychologist to produce this EHC Plan. However, there is no requirement for a council to get Educational Psychologist input when completing a review of an EHC Plan.
48. The Council was entitled to decide not get Educational Psychologist input for Y’s EHC Plan annual review meeting on 21 June 2023 and I cannot find it at fault for this.
49. However, following the annual review meeting, it was decided the Council should get an Educational Psychologist assessment of Y as part of amending Y’s EHC Plan. Since the Council decided to get this Educational Psychologist assessment, it should have followed through on this. Failure to get this input is fault. The Council has already accepted and apologised for this fault in both its Stage 1 and Stage 2 complaint responses.
50. While the Council has apologised for this fault, it has failed to consider the impact this fault may have had on Ms X and Y.
51. Since the Council did not produce the amended Final EHC Plan until 3 January 2024, the Council’s failure to get the Educational Psychologist input before this date presented no injustice to Y. This is because any input from the Educational Psychologist would not have been included in Y’s EHC Plan until the earliest of 3 January 2024. I have already addressed the delays in production of the amended EHC Plan outside the statutory timescales in paragraphs 43 and 44.
52. However, from 3 January 2024 to 4 July 2024, Y had an EHC Plan without Educational Psychologist input, despite the Council deciding that Y needed an Educational Psychologist assessment. This means that Y has gone seven months with a lost opportunity for suitable provision in their EHC Plan. The Ombudsman cannot say exactly what provision Y has missed, because only the Council, or Tribunal, can decide the content of a child’s EHC Plan. However, the Council has caused uncertainty over what provision Y should have received through its delays of seven months in getting an Educational Psychologist assessment of Y.

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Agreed action

53. Within one month of the Ombudsman’s final decision the Council should:
• Pay Ms X £500 for the Council’s delays and inaction causing avoidable uncertainty, frustration and lost opportunity for her and Y. This includes through the Council’s delay of 16 weeks outside the statutory timescales in reviewing her child’s EHC Plan following the annual review meeting on 21 June 2023. And, through the Council’s seven-month delay in completing an Educational Psychologist assessment of Y up to 4 July 2024.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. There was fault by the Council as the Council has agreed to my recommendation I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman