Summary: The Council was at fault for the time taken to tell Ms X about its decision to reassess her child and for delays issuing a final Education, Health and Care Plan following an annual review. The Council was also at fault for not properly investigating whether Ms X’s child had missed out on some of the provision in their Education, Health and Care Plan. Ms X had to wait much longer than she should have to appeal against the content of her child’s Education, Health and Care Plan and she cannot be sure her child received the provision they should have. To remedy the injustice caused the Council agreed to apologise, make a payment to Ms X and carry out a service improvement.

The complaint

1. Ms X complains the Council:
1. Refused to assess her child’s education, health and care needs after she asked for this.
2. Did not ensure her child received all the provision in their Education, Health and Care Plan.
3. Delayed issuing an amended Education, Health and Care Plan following an annual review.
4. Issued an Education, Health and Care Plan which did not properly reflect her child’s special educational needs and did not include one to one support for her child.

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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 the 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. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. 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(1), as amended)

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What I have and have not investigated

8. I have not investigated complaint d). This is because Ms X has appealed to the SEND Tribunal about Sections B and F of her child’s Education, Health and Care Plan. It will be up to the SEND Tribunal to decide what should and should not be included in sections B and F of the Education, Health and Care Plan.

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How I considered this complaint

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

Law and guidance

12. 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. 
13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

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. 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)
16. 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.
17. 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.
18. 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.
19. 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.

What happened

20. Ms X’s child, Y, has special educational needs. In July 2023, the Council issued an EHC Plan for Y. The EHC Plan included play therapy at least once per week for Y and Emotional Literacy Support Assistant (ELSA) sessions once per day.
21. In February 2024, Ms X asked the Council for a review of Y’s EHC Plan as she believed Y needed a change in provision and needed a dyslexia assessment. The Council held an annual review meeting in February 2024. The outcome of the review was that the Council agreed to make some amendments to Y’s EHC Plan. The Council sent Ms X an amendment notice in May 2024 along with a draft EHC Plan.
22. In late October 2024, Ms X made a complaint to the Council. Ms X said:
• The Council had not delivered all the provision in Y’s EHC Plan such as the ELSA sessions and play therapy.
• The Council has not carried out a dyslexia assessment for Y despite Ms X asking for this in February 2024 and in 2023.
• She wanted the Council to reassess Y as Y needed to receive one to one support.
23. In mid-November 2024, the Council told Ms X it needed more time to respond to her complaint.
24. On 13 December 2024, the Council provided its response to Ms X’s complaint. The Council said:
• It apologised for the delays in communication Ms X experienced.
• Dyslexia assessments are arranged by Y’s school. The Council said it would discuss this with Y’s school and provide Ms X with an update in late December 2024 on the dyslexia assessment.
• It did not consider there was enough evidence for Y to get one to one support in their EHC Plan
• Y’s school was responsible for delivering the provision in their EHC Plan and it would discuss with the school what it was doing to put in place the play therapy and ELSA sessions.
• It would issue a final EHC Plan in January 2025.
• It would send Ms X’s request for a reassessment to its next SEND Panel.
25. In late January 2025, correspondence between Y’s school and the Council showed the school said ELAS support had been in place and play therapy would recommence that week. The Council responded and asked Y’s school exactly what the ELAS support and play therapy consisted of.
26. On 28 January 2025, the SEND Panel considered Ms X’s request for a reassessment and decided to defer a decision. This was because there was not enough information from Y’s school to make a decision.
27. In early February 2025, the SEND Panel decided a dyslexia assessment did not fall under the Council’s duty to reassess Y’s needs so it would not fund this. The Panel also decided a reassessment for Y was not necessary as Y’s needs had not changed significantly.
28. In late March 2025, the Council issued a final EHC Plan for Y following the February 2024 annual review. This largely contained the same provision as the previous EHC Plan.
29. In early April 2025, Ms X asked the Council to consider her complaint further. Ms X said she was unhappy Y’s EHC Plan had not been properly amended and the Council had not considered her request for a reassessment of Y. Ms X said she did not believe Y’s EHC Plan met their needs and Y needed one to one support.
30. The Council provided its final complaint in late April 2025. The Council said:
• It considered Ms X’s request for a reassessment of Y but decided this was not necessary as it did not believe Y’s needs had changed significantly.
• It considered the dyslexia assessment was for Y’s school.
• Its decision not to progress with a reassessment and dyslexia assessment were sound, but its communication was not good and there was no evidence it communicated this decision to Ms X.
• It provided Ms X with a final EHC Plan in March 2025 and this had appeal rights if she disagreed with the Plan.
31. In May 2025, the Council contacted Y’s school about the ELSA support to find out when it started. Ms X also has appealed to the SEND Tribunal about the content of Y’s March 2025 EHC Plan.

Findings

Request to reassess

32. The Council became aware of Ms X’s request to reassess in October 2024, when she made a complaint. In its complaint response it agreed to consider her request for a reassessment, however it did not for this until February 2025. This was fault.
33. The Council should have considered Ms X’s request to reassess Y and told her of its decision within 15 calendar days. The Council also should have told Ms X she could appeal its decision not to reassess Y. Failure to do so meant Ms X could did not get the opportunity to choose whether she wanted to appeal the Council’s decision.
34. Ms X also asked the Council to carry out a dyslexia assessment for Y. Ms X had been asking the Council for a dyslexia assessment from 2023. It took the Council until April 2025 to tell Ms X its position on the dyslexia assessment. This was fault. Had it done so sooner Ms X could have decided to pursue this with Y’s school or seek her own assessment.

Provision in the EHC Plan

35. Ms X complained Y had not received the ELSA and play therapy sessions in their EHC Plan. From the evidence seen it appears the Council became aware of this in October 2024 when Ms X raised this as part of her complaint. The Council told Ms X it would speak to Y’s school about this, however as of May 2025, the Council had not received confirmation about whether the ELAS and play therapy sessions were or had been in place. This is fault.
36. The Council also told Ms X in its complaint response the school was responsible for delivering the provision in Y’s EHC Plan. However the Courts have said the duty to arrange special educational provision is owed personally to the child and is non-delegable. So if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable. In this case the school was to arrange the provision but if it failed to do so the Council would remain responsible.
37. After Ms X raised concerns about ELSA and play therapy not being delivered the Council should have quickly investigated whether this provision was in place. Instead it took the Council until January 2025 to make some enquiries with the school and as of May 2025 it still did not have an answer about what provision was in place. This was fault. As a result there is uncertainty about whether Y received the provision they were entitled to from October 2024.

Delays carrying out annual review

38. An annual review took place of Y’s EHC Plan in February 2024, after Ms X requested this. The outcome of this was the Council decided to make amendments to the EHC Plan. The Council should have issued a final EHC Plan within 12 weeks of the annual review meeting. Failure to do so was fault. The Council issued an amended draft Plan in May 2024 but did not issue a final EHC Plan until March 2025.
39. It is not clear why it took so long to issue a final EHC Plan, but it was clear that Ms X was unhappy with the amendments and content of the EHC Plan and wanted one to one support for Y. By delaying issuing a final EHC Plan Ms X had to wait 9 months longer than she should have to submit her appeal to the SEND Tribunal which caused her distress. Had the Council issued the EHC Plan within the statutory timeframe, Ms X could have appealed to the Tribunal much earlier in order to get Y’s EHC Plan changed.

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Agreed Action

40. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Ms X for the injustice caused by the above faults. The Council should consider the impact on Ms X and her child when apologising. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Ms X £200 to recognise the distress and frustration she suffered as a result of the time taken to update her about the dyslexia assessment decision and reassessment decision.
• Pay Ms X £400 to recognise the distress and loss of opportunity to appeal her child’s EHC Plan she suffered caused by the delays from the Council issuing a final EHC Plan following the February 2024 annual review.
• Contact Y’s school to confirm whether the ELSA and play therapy sessions were in place from October 2024. If not the Council should make Ms X a financial payment to recognise any loss of provision to Y. The Council should consider our guidance on remedies when making a financial payment.
• Take steps to remind staff or change internal processes to ensure that reassessment decisions for a child’s education, health and care needs are communicated to parents within the correct timeframe along with their right to appeal.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The Council agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman