Summary: Mrs X complained the Council failed to get suitable advice from the relevant professionals for her child’s Education, Health and Care Plan reassessment. Mrs X complained the Council refused to cover the cost she incurred getting relevant advice. We found fault with the Council failing to get Educational Psychologist input for Mrs X’s child’s Education, Health and Care Plan reassessment. The Council instead relied on the professional advice sourced by Mrs X but refused to reimburse this. The Council agreed to apologise to Mrs X for failing to get the relevant input, rebate the cost of the Clinical Psychologist advice she got and pay her £100 for the inconvenience and frustration caused.

The complaint

1. Mrs X complained the Council failed to get suitable advice from the relevant professionals for her child’s Education, Health and Care Plan reassessment as outlined in the SEND Regulations 2014.
2. Mrs X says the Council refused to cover the cost of her getting this advice resulting in her covering these costs.

Back to top

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 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

Back to top

How I considered this complaint

7. I considered evidence provided by the Council and Mrs X as well as relevant law, policy and guidance.
8. The Council and Mrs X had an opportunity to comment on my draft decision before I made my final decision.

Back to top

What I found

Rules and regulations

9. 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.
10. 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 re-assessment, and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
11. As part of an assessment, or reassessment, 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. 

12. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  
13. Those consulted have a maximum of six weeks to provide the advice. 
14. 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.

What happened

15. On 15 November 2023, Mrs X sought a reassessment of her child’s, who I shall refer to as Y, needs. The Council agreed to this the same day but did not tell Mrs X in writing.
     
16. In December 2023 Mrs X asked the Council to get advice from a Clinical Psychologist which she would arrange. Mrs X sent a follow up email requesting confirmation the Council would pay for the Clinical Psychologist assessment as part of Y’s EHC Plan reassessment.
17. On 14 January 2024, Mrs X chased the Council for a response about her request for a Clinical Psychologist assessment.
18. Mrs X raised a formal complaint with the Council on 17 January 2024. Mrs X told the Council she had arranged a Clinical Psychologist assessment for Y and expected the Council to reimburse her for this assessment. Mrs X acknowledged the Council had previously stated it would not pay for anything unless it had approved this in advance but said the Council was delaying responding to her request for approval.
19. On 17 January 2024, the Council confirmed with Mrs X it did not agree to a Clinical Psychologist assessment because an Educational Psychologist would fulfil this role as part of Y’s EHC Plan assessment. The Council confirmed it was in the process of reassessing Y’s EHC Plan and apologised for not confirming this with Mrs X sooner.
20. On 12 February 2024, the Council issued a final response advising “There is no evidence to indicate that a Clinical Psychology assessment” for Y’s needs to be assessed. The Council also said it did not consider “the proposed assessment would offer anything additional to that which is provided by an Educational Psychologist through their assessment”. The Council reaffirmed it would not reimburse Mrs X for the Clinical Psychologist assessment.
21. In May 2024, Mrs X sent the Clinical Psychologist report to the Council following a meeting with the Council in April 2024.
22. On 11 October 2024, the Council produced a Final EHC Plan for Y. Within the Final EHC Plan for Y, the Council directly referenced Ms X’s Clinical Psychologist report within Section K of the EHC Plan detailing the advice and information used when creating the EHC Plan. Within the Final EHC Plan, the Council referenced information solely available from the Clinical Psychologist report such as Y’s diagnosis of Avoidant/Restrictive Food Intake Disorder. The Council also referenced the Educational Psychologist report provided by Mrs X in August 2023 but did not include any council Educational Psychologist reports.
23. Mrs X raised a formal complaint with the Council that it used the Clinical Psychologist assessment in Y’s EHC Plan but refused to reimburse the costs for this. Mrs X said the Council failed to get relevant evidence for Y’s EHC Plan reassessment in line with the Special Educational Needs and Disability Regulations 2014.
24. On 8 November 2024, the Council responded to Mrs X’s complaint. The Council said it had previously told Mrs X it did not consider Y needed a Clinical Psychologist assessment and it would not be reimbursing Mrs X for this. The Council said Mrs X had commissioned the previous Educational Psychologist assessment in August 2023, before the Council had agreed to a reassessment. The Council said it did not consider the Clinical Psychologist advice “was essential advice to obtain” and Y’s “needs could have been met from our own commissioning of an Educational Psychologist”. The Council said it did not consider it was its responsibility to fund this assessment.

Analysis

25. The SEND Regulations 6(1) outlines the evidence and information a council should get as part of an assessment, or reassessment, of a child’s EHC Plan. The SEND Regulations 6(1) do not require a council to get Clinical Psychologist input for a child’s EHC Plan. There was therefore no legal duty for the Council to get Clinical Psychologist input for Y’s EHC Plan.
26. While the Council had no duty to get Clinical Psychologist input, the SEND Regulations 6(1) detail a council should get advice from any person requested by a parent when the council considers it reasonable to do so. While a person may request input or advice from any source, the Council ultimately has authority to decide what input and advice to get.
27. When a council decides not to get input requested by a person, it would need to present its rationale for why it did not consider this input reasonable to obtain. In Mrs X’s complaint the Council told Mrs X it would not get Clinical Psychologist advice, or reimburse her for Clinical Psychologist advice. The Council supported its rationale for this decision by saying it did not consider this advice would provide anything additional to advice its Educational Psychologist would provide. This was a merits decision the Council was entitled to make supported by suitable rationale. I cannot find fault with the Council’s decision.
28. While I cannot find fault with the Council’s initial decision, its actions following this decision demonstrate it has failed to follow this decision. The Council accepted the Clinical Psychologist report from Mrs X in May 2024 and then used this Clinical Psychologist report within the EHC Plan to directly inform the content. Given the Council’s decision it did not need the Clinical Psychologist input, I would expect it not to use this report in the EHC Plan. Doing so, undermines it previous decision.
29. It is also notable the Council’s rationale for rejecting the need for the Clinical Psychologist report was based on the premise that it would duplicate the input from its own Educational Psychologist. The Council had a duty under the SEND Regulations 6(1) to get input from an Educational Psychologist for Y’s EHC Plan. The Council did not get this input, and instead relied on Mrs X’s privately sourced Educational Psychologist from a year prior. This was fault.
30. Since the Council failed to get an Educational Psychologist report it undermined its rationale for refusing the Clinical Psychologist input. This is because there was no longer a duplication of work in the 2024 assessment meaning the Council needed to rely on the Clinical Psychologist report for relevant up-to-date information. This meant Mrs X’s privately obtained Clinical Psychologist report became essential for the Council to complete a satisfactory and up-to-date assessment.
31. It is appropriate in these circumstances for the Council to cover the cost to Mrs X for the Clinical Psychologist report given the resultant reliance on this report.
32. Mrs X had to spend her own time and energy in arranging this Clinical Psychologist assessment and liaising with the Council about this. Given that this Clinical Psychologist assessment has effectively replaced something the Council was required to do under the SEND Regulations, the Council’s fault and inaction has caused this frustration and inconvenience to Mrs X. The Council should apologise to Mrs X for the frustration and inconvenience this matter and pay her £100 as a symbolic gesture of goodwill.

Back to top

Action

33. Within one month of the Ombudsman’s final decision the Council should:
• Reimburse Mrs X the cost of the Clinical Psychologist assessment and report she sourced in 2024, which the Council used in the EHC Plan, on receipt of evidence of this cost.
• Provide Mrs X with an apology and a payment of £100 for the inconvenience and frustration the Council’s inaction through failing to get an Educational Psychologist report has caused, and the need for Mrs X to fulfil this role through provision of the Clinical Psychologist report.
34. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

35. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman