Summary: We cannot investigate Mrs X’s complaint the Council failed to seek advice and information from an Educational Psychologist (EP) as part of its Education, Health and Care (EHC) needs assessment of her child Y because it is connected to her appeal to the Tribunal. The Council was at fault for not issuing Y’s plan within the statutory timescales. The Council has agreed to apologise and make a payment to Mrs X to acknowledge the uncertainty and delayed appeal rights this caused.

The complaint

1. Mrs X complained the Council failed to seek advice and information from an Educational Psychologist (EP) as part of its Education, Health and Care (EHC) needs assessment of her child Y. She also complained the Council took too long to issue the plan. She says this has resulted in an EHC Plan that does not reflect Y’s needs. She wants the Council to carry out an EP assessment and issue a new plan.

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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 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)
4. 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)
5. 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

6. I have not investigated Mrs X’s complaint about whether the Council sought advice from an Educational Psychologist as part of Y’s EHC needs assessment. Mrs X has appealed the SEN Tribunal. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
7. This part of Mrs X’s complaint is connected to her appeal to the Tribunal, and the law says we cannot investigate it. Any injustice caused by faults with the Council’s assessments is that the EHC Plan does not meet Y’s needs which is the subject of Mrs X’s appeal to the Tribunal. In addition, the Tribunal has wide powers to order reports to be completed.

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How I considered this complaint

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

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What I found

Education Health and Care (EHC) Plans

10. 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. 
11. 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. 
• 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).

12. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist.
13. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

Special Educational Needs and Disabilities (SEND) and Alternative Provision Improvement Plan

14. The SEND and Alternative Provision Improvement Plan is a government plan to ensure more children and young people with SEND receive the support they need.
15. As part of the plan the Council is piloting a new approach to gathering advice and information from Educational Psychologists. This involves using a range of specialist teachers to carry out assessments, seeking advice from educational psychologists.

What happened

16. The Council agreed to carry out an Education, Health and Care Needs Assessment for Mrs X’s child, Y, in April 2024. In October 2024 a specialist teacher began assessing Y, while consulting with an Educational Psychologist (EP). Mrs X complained to the Council as she was unhappy the Council had not asked an EP to assess Y. She also complained the Council had exceeded the statutory timescale to complete Y’s assessment.
17. In its complaint response the Council explained it was piloting a new approach but had still sought EP advice where needed. The Council said it was satisfied it had complied with SEND Regulation 6. Mrs X asked the Council to consider her complaint at stage two of its complaint process. In its stage two response the Council said it was unable to add anything to its stage one response. The Council did not respond to Mrs X’s complaint about the timescale for Y’s assessment. Mrs X remained unhappy and complained to the Ombudsman.
18. The Council issued Y’s final EHC Plan in January 2025. Mrs X appealed to the Tribunal. In April 2025 the Tribunal issued an order. It clarified it would determine whether the content of Y’s plan met their needs, and an appropriate placement for Y. It refused Mrs X’s request to order the Council to obtain further EP advice.

My findings

19. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council agreed to assess Y in April 2024. Having agreed to assess Y the Council should have issued Y’s EHC Plan within 14 weeks. The Council did not issue Y’s Plan until January 2025; a delay of six months. This was fault.
20. The delay in progressing Y’s EHC needs assessment is fault. I cannot say whether the delay that occurred meant Y lost out on special educational provision. This is because the EHC Plan issued in January 2025 reflected Y’s needs at the time of the assessment, not necessarily as they would have been when it was originally due. However, the fault delayed Mrs X’s right of appeal to the Tribunal and caused her frustration, distress and uncertainty.
21. As a result of other investigations, the Council has provided us with a plan of how it intends to address the delays in its EHC needs assessments. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

22. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mrs X for the impact of its failure to assess Y within the statutory timescales. 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.
2. Pay Mrs X £600 to acknowledge the impact of the six-month delay in issuing Y’s EHC Plan.
23. The Council should provide us with evidence it has complied with the above actions.

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Decision

24. I find fault causing injustice which the Council has agreed to remedy

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman