Summary: Mrs D complained the Council caused delays in the Education, Health and Care (EHC) needs assessment process for X, and it wrongly amended its educational psychologists’ reports. She said this caused both her and X distress and frustration. We found the Council’s delay was a service failure which caused an injustice. We have not investigated her concerns about amendments to professionals’ reports as this relates to contents produced for an EHC plan which carries appeal rights to the SEND Tribunal. The Council will apologise to Mrs D and make a symbolic payment to acknowledge the injustice it delays caused.

The complaint

1. The complainant, Mrs D, complained about the Council’s handling of her child’s (X) education. She said it:
• failed to adhere to the statutory timescales in the Education, Health and Care (EHC) needs assessment process;
• wrongly amended educational psychologist reports, and decided to include only part of the reports in X’s EHC Plan; and
• had failed to provide suitable education to X when he was unable to attend school.
2. Mrs D said, as a result, she and X has experienced distress and uncertainty which has impacted their mental health, and X has had a loss of education.

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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 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. 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.
6. 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)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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)

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What I have and have not investigated

9. I have investigated Mrs D’s complaint about delays in the Council’s EHC needs assessment process and how it responded when it became aware X was struggling or unable to attend his school placement.
10. I have not investigated:
• the Council’s decision to refuse Mrs D’s initial EHC needs assessment request for X in Autumn 2023, as this is late and was appealed to the SEND Tribunal; and
• Mrs D’s concerns about the Council’s process to quality assure agency or internal educational psychologist reports, and amendments to such reports. This is because this relates to the advice and provision for the EHC plan process for which there are appeal rights to the SEND Tribunal.

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How I considered this complaint

11. I considered evidence provided by Mrs D and the Council as well as relevant law, policy and guidance.
12. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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

Education, Health and Care needs assessments

14. 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.
15. 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 within six weeks.
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• 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).
16. The council must consult with the parent or young person’s preferred educational placement who must respond within 15 calendar days. There is a right of appeal to the Tribunal against various Council decisions about EHC plans. This includes a decision not to carry out an EHC needs assessment.

Alternative Provision

17. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
18. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
19. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
20. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

21. Mrs D’s child (X) has been diagnosed with health conditions and has special educational needs which impacts his ability to attend education.
22. In Summer 2023 X was unable to attend his school placement due a decline in his mental health and increased anxiety.
23. In September 2023 Mrs D asked the Council to complete an EHC needs assessment for X. The Council did not agree to the request.
24. The school worked with Mrs D and X in Autumn 2023 to support him to receive some education during this time. This included some online sessions, homework, welfare checks and a home visit.
25. In October 2023 the school made a referral to the Council’s Education Access for support as X was unable to attend school. He also started receiving private counselling.
26. In January 2024 Mrs D appealed the Council’s refusal to complete an EHC needs assessment for X to the SEND Tribunal.
27. The school put a new tutor in place to support X through online learning. Although X knew the tutor, he became less engaged and attendance decreased.
28. In February 2024 the Council agreed to complete an EHC needs assessment for X. It also arranged for its Education Access team to start working with X. It arranged three face-to-face sessions to help support X with online learning and agreed to provide 12 weeks of online learning in key subjects.
29. In March 2024 X started receiving support through a mentoring programme which Mrs D had arranged. However, he struggled to engage and this did not progress.
30. In August 2024 the Council arranged for an online educational psychologist assessment for X, which was completed by an agency. The report was issued in September 2024.
31. Mrs D asked for a copy of the report. She subsequently disagreed with parts of the report, questioned why parts of the report had been amended by the Council, and found the standard of the report to be poor. So, she complained to the Council.
32. In response the Council explained the report had been completed by an agency it uses to manage the high number of requests for educational psychologist assessments it receives. It has a quality assurance process in place to ensure these meets the Council standards. However, it had reviewed the report and found it did not meet the standards the Council expects. X would therefore be assessed by a Council educational psychologist in an in-person assessment.
33. In November 2024 the Council’s educational psychologist assessed X. A draft of the report was shared with Mrs D. The Council subsequently made some changes to the report, including some parts of the provision, through its quality assurance process.
34. Mrs D raised her concerns to the Council about its process. She said it was wrong for it to remove or amend the recommendations made by the educational psychologists before the report is finalised.
35. In December 2024 the Council informed Mrs D the EHC needs assessment process had been completed, and it would issue an EHC plan for X. A draft EHC plan was shared for Mrs D to provide comments on and to suggest an educational setting.
36. In February 2025 the Council issued X’s final EHC plan. This set out his special educational needs and the support he should receive. It listed an independent special school.
37. Mrs D asked the Ombudsman to consider her complaint about the Council’s significantly delayed EHC needs assessment process for X, and how it had amended educational psychologist reports through its quality assurance process. She said X had not received the education he was entitled to as a result.

Analysis and findings

Delays in the EHC needs assessment process

38. The Council agreed to begin the EHC needs assessment for X in February 2024. As it later agreed an EHC plan should be issued for X, it had until May 2024 to issue its final EHC plan. However, it took the Council until February 2025 to complete the statutory process, which was a delay of nine months.
39. The Council accepted it caused the delays in the process. It has explained that a lack of educational psychologists has contributed to the delay. I have therefore found the delay to issue a decision amounts to a service failure, which caused Mrs D distress and frustration. In addition, Mrs D experienced a delay in exercising her appeal rights should she decide to do so.
40. We are satisfied the Council is taking action to deal with the issues caused by a lack of educational psychologists. In response to our findings in a previous case it sent us an action plan of its service improvements. I have therefore not made any further recommendations for this failure.

Alternative provision

41. While Mrs D’s complaint to the Council was not specifically about the amount or level of provision X received whilst waiting for his EHC needs assessment to be completed, I have considered whether the Council properly reviewed its duties to provide an education when X was unable to attend his school.
42. The evidence shows X was struggling to engage and attend school since September 2023. He was initially supported by his school and the Council became involved in November 2023. However, as the referral from his school lacked key information, the Council sought more information from the school and arranged a meeting which caused some delay. This was not fault by the Council.
43. The Council’s Education Access Team put in place provision which it found would be appropriate to X. The purpose of the provision was to support him to receive some education, which could subsequently be increased, and in-person reintegration support was available.
44. While the education available to X was limited and did not amount to a full-time education, this was what the Council and his school found he could engage with at the time. In reaching its views it considered information from the school, Mrs D, and professionals working with X. It reviewed the information it received to assess whether the support was appropriate at least termly.
45. I have therefore not found fault in the process the Council followed to reach its view on the alternative provision X should receive, and it reached decisions it was entitled to make.

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Action

46. To remedy the injustice the Council caused to Mrs D and X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs D to acknowledge the injustice its service failure caused;

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.

2. pay Mrs D a symbolic payment of £900. This is calculated at £100 per month for the delay it caused in its Education, Health and Care needs assessment process.
2. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I find the Council responsible for a service failure which caused an injustice. The Council will apologise and make payment to acknowledge the impact this caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman