Summary: The evidence currently suggests fault by the Council on Mrs Y’s complaint about it failing to initially accept her private Educational Psychologist report in support of her request for an Education, Health and Care plan for her daughter. It failed to issue the final plan within statutory timescales or deal with her complaint properly. As a result, her daughter lost provision for one and a half terms. The fault also caused frustration, lost opportunity, and uncertainty. The Council agreed to pay for lost educational provision and distress. It would remind relevant officers about the role of a panel, the need to give clear explanations about doubts of private reports, and the need to follow its own complaints procedure.

The complaint

1. Mrs Y complains about the Council failing to:
1. initially accept her privately obtained Educational Psychologist report in support of her request for an Education Health and Care needs assessment of her daughter, Z, only for it to later accept it; and
2. complete the assessment process according to statutory timescales which meant it also failed to issue an Education, Health and Care plan within the timescales as well.
2. As a result, these failures impacted on her and her daughter’s mental health, caused a great deal of stress, anxiety and frustration, as well as cost her financially.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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. 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 all the evidence provided by Mrs Y, and the Council’s response to my enquiries, along with relevant law, policy, and guidance. I sent a copy of my draft decision to Mrs Y and the Council. I considered the Council’s response.
8. I also considered the decision on Mrs Y’s complaint (24 001 376) made on 5 February 2025 about the Council failing to ensure her daughter received alternative education provision from October 2023 to May 2024. This decision resulted in an agreed remedy.

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What I found

Education, Health and Care Plans

9. Children with special educational needs may have an Education, Health and Care plan (EHC plan). This sets out the child’s needs and what arrangements should be made to meet them.
10. Statutory guidance, ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’,) sets out the process for carrying out Education, Health and Care needs assessments (EHC needs assessments) and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. The Code says:
• where a council receives a request for an EHC needs assessment, it must decide whether to agree to the assessment within six weeks;
• if the council decides to carry out an assessment, it should do so “in a timely manner”;
• as part of the EHC needs assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice;
• if the council decides to issue an EHC plan after an assessment, it should prepare a draft EHC plan and send it to schools that may be able to accept the child or young person and meet their needs. Schools should respond to the consultations within fifteen calendar days; and
• the whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC plan.
11. There is a right of appeal to the Special Educational Needs and Disability Tribunal about the educational provision and placement named in a child’s EHC plan. This appeal right only arises once the final EHC plan is issued.

Education Health and Care Needs Assessment Panel (terms of reference)

12. The panel acts in an advisory capacity for the Council’s decisions in the EHC needs assessment process. One of the advisors, a principal EP or senior EP, gives advice on compliance with statutory duties.

What happened

13. Mrs Y’s 15 year old daughter, Z, stopped attending school in October 2023 because of severe anxiety and unmet needs.
14. In February 2024, the Council received Mrs Y’s request for an EHC needs assessment which included a private EP report.
15. In March, the Council told Mrs Y it agreed to assess Z.
16. The Council later told Mrs Y her EP report was not sufficient, and further information was required. Despite attempts by Mrs Y and the school, the Council did not say what further information it needed.
17. In June, Z started attending another school (a pupil referral unit) on a reduced timetable along with an alternative provider one day a week.
18. The Council told Mrs Y it had asked for advice from an EP as part of the EHC needs assessment. The EP service was ‘working significantly behind with its assessments’ due to a high level of requests. It also explained while it received her private EP report, a multi-agency panel (the panel) decided it needed an ‘addendum EP advice.’ This suggested the panel felt additional information was needed for the assessment. When it set out the criteria of the EP service, Mrs Y pointed out the private report dealt with all of these points.
19. Mrs Y contacted the school, and the EP was asked about what the Council had said. She told the Council the EP considered the report was sufficient and met its criteria. When asked what extra information was needed, the Council said it could not say. I have seen nothing which clearly explained to her what the extra information needed was or exactly why there were doubts about the private EP report.
20. The Council asked a senior EP to check the report to see if it could be used within the EHC plan process. The senior EP replied 12 minutes later saying what a report needed to include, such as parents’ and pupil views, for example. The reply concluded the report was sufficient for the EHC needs assessment process.
21. Mrs Y made a formal complaint the same month as she was unhappy with the delay in issuing the EHC plan.
22. The Council responded to her complaint under the first stage of its complaints procedure in July. The Council confirmed the same month it would issue a plan.
23. Mrs Y asked for her complaint to go to the second stage of its complaints procedure.
24. In August, the Council asked the EP service for clarification about whether the private report was sufficient. The Council confirmed while this contact was done outside of its normal procedure, it was done with the best intention to move the case on. It also confirmed the panel had recommended a Joint Addendum Meeting but, instead, a senior EP was asked to consider whether it could be used for the statutory assessment.
25. It confirmed in future, it will follow its usual practice of all decisions on sufficiency were for the panel to decide. Its procedures stated all private EP reports were taken to the panel. This was because sufficiency, or further action, or further action such as a Joint Addendum Meeting, was decided through the panel process.
26. In September, Mrs Y chased the Council and asked what was happening with the EHC needs assessment. The Council chased the EP service and was then told the private report was sufficient to draft her EHC plan. The senior educational psychologist sent the Council a copy of the email she sent in July.
27. The Council responded to her stage 2 complaint in September. It apologised for the delay and apologised for any confusion about the report, which it confirmed it had accepted. The Council also told her it would issue a draft EHC plan shortly, which it did in October.
28. The Council received amendments from Mrs Y towards the end of November.
29. It sent an amended draft EHC plan in January 2025 and the final was sent the following month.
30. The Council accepted there were delays with the process which it regretted. It explained part of the delay was because of staff absences and staff leaving the service. It faced challenges meeting its statutory timescales because of capacity issues within the service. It is working to improve the situation by increasing staffing to improve capacity within area teams. It is in the final stages of recruiting three additional team managers and six case workers. This will help process assessment requests within the statutory timescales and improve communication with families. Its actions should also help support current staff and reduce staff absenteeism.

My findings

31. I found fault on this complaint for the following reasons:
1. Councils are expected to follow the statutory timescales set out in the law and the Code. It is fault to significantly breach those timescales. The Council had 20 weeks from the date it received Mrs Y’s request for an EHC needs assessment to issue the final EHC plan. As the Council received her request on 13 February 2024, the 20-week deadline was 2 July. The final EHC plan was issued on 7 February 2025, seven months later.
2. There was a period when amendments were made to the draft EHC plan. I note the law provides limited exceptions to a council needing to meet the statutory 20-week timescale. These are set out in Regulation 10 (4) (a) to (d) of the Special Educational Needs and Disability Regulations 2014. The evidence I have seen does not satisfy me any of the four exceptions applied in this case.
3. This means the Council delayed issuing the final EHC plan by about 28 weeks. This is fault. I am satisfied this caused Mrs Y and Z an injustice. I am satisfied Z was disadvantaged by the delays as she could have had the provision set out in the final EHCP sooner than she did. The delays amounted to missed provision for one full term (September 2024 to December 2024) and one-half term (January 2025 to February 2025). This also caused some frustration and stress for Mrs Y.
4. The Ombudsman usually recommends between £900-£2,400 a term in recognition of lost provision. I took account that during the period of delay, Z received some provision. As she received some provision during this period, I have taken a figure of £700 a term (£700 x 1.5 terms, amounting to £1,050).
5. There was no evidence of the Council clearly explaining what the problem with her private EP report was nor, explaining what further information was needed. to Mrs Y. This was fault. The Council needed to explain both to her so she could understand why it was not considered sufficient. It also needed to have a record of the problem and what evidence was needed. This failure caused her some frustration through lack of understanding as well as some uncertainty.
6. The Council accepted proper procedures were not followed when a senior EP was asked for a view on Mrs Y’s private EP report. The proper procedure was for this to be considered and decided by the panel. Indeed, I note the panel recommended a Joint Addendum Meeting which could have considered her EP report. The failure to follow procedure was fault. Again, this caused Mrs Y an injustice as she lost the opportunity for the issue to be properly considered by the panel sooner.
7. The evidence showed the senior EP replied to the Council’s query about whether her EP report could be used as part of the statutory assessment. The Council, for whatever reason, did not act on this response. Instead, it chased the senior EP in August and then again in September, after Mrs Y had been in touch about progress. At this point, the senior EP sent a copy of the previous email sent to the Council in June. The failure to act on the senior EP’s email in June amounted to fault. This caused Mrs Y and Z an injustice as this contributed to the overall delay to provision being made.
8. The Council delayed responding to her stage 2 complaint made in July until September, two months later. Under its complaints procedure, a stage 2 complaint is considered by the Head of Service, or Director, and a response is sent within 20 working days from when Mrs Y asked for it to go to stage 2. In exceptional circumstances, where it will take more than 20 working days, it would let her know. As the Council should have responded to her complaint within 20 working days, this meant its response was one month late. I have seen nothing to show it told her during this period that it was taking longer than usual. The delay was fault. I consider it caused her an injustice as she was caused frustration.

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Action

32. I considered our guidance on remedies. I also took account of the actions the Council said it is taking to ensure the delays identified are not repeated on future cases. I also considered the apologies it already gave.
33. The Council agreed to carry out the following actions within four weeks of the final decision on this complaint:
1. Send Mrs Y a written apology for failing to: properly, and clearly, explain to her why her private EP report was not sufficient; properly, and clearly, explain to her what further information was required; follow procedure when it made a referral to the EP service; act promptly when the EP service replied; deal with her complaint properly under its complaints procedure.
2. Pay £1,050 (£700 x 1.5 terms) to Mrs Y for the lost provision under her daughter’s EHC plan caused by the delays.
3. Pay £250 to Mrs Y for the distress the identified fault caused.
4. Remind relevant officers about the role of the panel deciding the sufficiency, or otherwise, of private EP reports.
5. Ensure clear, understandable explanations are given about decisions of the sufficiency of private EP reports to those who send them in support of applications for EHC plans.
6. Provide an update on the actions it said it started to ensure delays are not repeated on future cases.
7. Remind relevant officers dealing with complaints of the requirements of its complaints procedure in terms of timescales.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I found fault on Mrs Y’s complaint against the Council. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman