Summary: Ms B complained that the Council delayed in completing an Education, Health and Care [EHC] needs assessment for her son C. she said it also refused to accept her private educational psychology report or ensure the school provided appropriate support during the period of delay. We found that the Council delayed in completing the EHC needs assessment and producing a final EHC Plan. This caused distress and inconvenience to Ms B and C to miss out on some support. The Council has agreed to pay Ms B £175 in addition to the £325 already offered. It has also agreed to write a letter of apology to C and provide details of the steps it is taking to improve the supply of EP reports.

The complaint

1. Ms B complained that Hampshire County Council (the Council) in respect of Mrs B’s son, C, delayed in completing an Education, Health and Care (EHC) needs assessment and issuing a final EHC Plan. It refused to accept Ms B’s private educational psychology report or ensure the school provided the 1:1 support C needed during the period of delay. She said this caused C to have an accident at school knocking out his front teeth on two occasions and led to him being unable to attend at all. She also said the Council failed to provide C with any education or support while he was unable to attend school. This has caused significant and continuing distress and inconvenience to both Ms B and C.

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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. 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.
5. 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

6. I have investigated the period between 18 June 2024 (when the SEND tribunal ordered the Council to carry out the needs assessment) and 21 November 2024 (when the final EHC Plan was issued and Ms B’s right of appeal arose).

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How I considered this complaint

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

Special educational needs

10. A child or young person with special educational needs may have an 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. 

Timescales for the EHC assessment

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. 
• 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 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);  

Advice and information for assessments

12. As part of the assessment, 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. 

13. 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.  
14. Those consulted have a maximum of six weeks to provide the advice. 

Appeal rights

15. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment; and
• 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.

16. 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)

What happened

17. On 18 June 2024 the Tribunal ordered the Council to carry out an EHC needs assessment in respect of Ms B’s son C. On 21 June 2024 the Council requested an education psychologist’s [EP’s] assessment and report.
18. On 4 August 2024 C’s school provided a report for the assessment. It said it was providing C with a significant amount of extra support including 1:1 support in the classroom, weekly support sessions with an emotional literacy support assistant, frequent check-ins with a learning support assistant and/or teacher, use of a sensory box, access to a safe space, regular brain breaks, sensory circuits, and a neurodiverse lunch club.
19. On 7 August 2024 Ms B provided the private EP report she had obtained in July 2024.
20. On 10 September 2024 Ms B’s solicitor wrote to the Council again enclosing the private EP report. They noted the Council’s EP assessment only took place on 9 September 2024. The solicitor also said that despite the extra support in place, C was struggling to attend school.
21. On 17 September 2024 C had an accident in the school playground during break time. No other children were involved. He had to seek emergency medical treatment.
22. The Council received the EP report on 30 September 2024. Ms B complained of inaccuracies in the report, but the Council directed her to the EP service.
23. On 3 October 2024 Ms B made a formal complaint to the Council about the delay in completing the needs assessment and issuing an EHC Plan. She said the lack of support had caused the accident and school and resulted in permanent damage to C.
24. On 11 October 2024 the Council issued a draft EHC Plan. C then had another accident at school exacerbating the damage previously caused. He had some time off sick and on 18 November 2024 the school implemented a part-time timetable. Between June and November 2024 his attendance was approximately 62%.
25. The Council responded to Ms B’s complaint at stage one of its complaints procedure on 14 October 2024. It acknowledged that the EP report was due on 2 August 2024 but was not received until 30 September 2024. It apologised for the delay and said the EP service was working hard to increase capacity and reduce the number of outstanding assessments. It said it did not agree to commission an independent report as an EP had been assigned to the case. It noted that an EP should consult any other psychologists known to be involved with the child. It said the draft EHC Plan had now been issued and Ms B had the opportunity to comment on it if she disagreed with the content including the EP report.
26. Ms B escalated her complaint to stage 2 on 14 October 2024 as she remained unhappy with the delay and felt the initial response was not detailed or thorough.
27. On 21 November 2024 the Council issued the final EHC Plan which included provision of 1:1 supervision during break times.
28. The Council responded to the stage two complaint on 11 December 2024. It upheld the delay in issuing the EHC Plan and offered Ms B £75. It did not uphold her complaint that the delay cased Ms B to pay for a private EP report.
29. Ms B appealed against the final EHC Plan and in January 2025 complained to us.
30. In response to my enquiries the Council offered to pay an additional £250 for the delay, totalling £325.

Analysis

31. The EHC Plan should have been issued by 24 September 2024 (14 weeks after the Tribunal decision on 18 June 2024) but was not issued until 21 November 2024, approximately two months late. The delay was mainly due to the delay in obtaining the EP report. The report should have been provided within 6 weeks of 21 June 2024 (by 2 August 2024) but was not received until 30 September 2024.
32. The delay was fault which caused Ms B distress and frustration and C to miss out on some essential support, particularly during break times. However I note that the school was already providing much of the support detailed in the EHC Plan between September and November 2024.
33. I note C’s accident occurred on 17 September 2024. Even without the delay, the process was not due to be completed until 24 September 2024, so the requirement for more 1:1 support would not have been in place.
34. Ms B obtained the private EP report in July 2024 before the delay with the Council’s EP report occurred, so I have not concluded that this action was a result of fault by the Council. I accept Ms B provided the private EP report on 7 August 2024 but given that C’s case had already been allocated to an EP and an assessment date booked, I do not consider it was unreasonable for the Council to wait for that process to conclude, even though it added to the delay in completing the assessment.
35. Between 18 June and 18 November 2024 (when the school introduced a part-time timetable) C did not have more than 15 consecutive days of absence to trigger the section 19 duty to consider alternative education.

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Action

36. I welcome the Council’s offer of £325 in recognition of the injustice to Ms B and C. However, as the final plan specified more support for C than he was receiving in school I have concluded he potentially missed out on two months of some additional 1:1 support in class and supervision during break times, from a dedicated member of staff. I consider an increased payment is appropriate.
37. I recommend within one month of the date of my final decision, the Council:
• sends C an individual letter of apology;
• apologises to and pays Ms B £300 (for the benefit of C’s education) and £200 for her own distress and uncertainty totalling £500 (including the £325 already offered); and
• provides details of the steps it is taking to improve the supply of EP reports.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman