Summary: Miss X complained about delays in completing an Education, Health and Care needs assessment for Y. The Council was at fault for delays causing frustration and uncertainty and meaning Miss X incurred the cost of a privately commissioned report. The Council has agreed to apologise, reimburse Miss X for the costs incurred and make a payment to recognise the injustice.

The complaint

1. Miss X complains the Council failed to complete an Education, Health and Care (EHC) needs assessment and issue a final EHC Plan for Y following a tribunal order in July 2024. As a result of the delays, Miss X says she incurred the costs of a privately commissioned report to be used in the assessment and her and Y have been caused considerable distress and frustration.

Back to top

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. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
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(1), as amended)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. If someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, connected to, or could have been part of the appeal.
10. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
11. I have investigated from the point the Tribunal made its decision in July 2024 up until the point the Council issued Y’s final EHC Plan in June 2025.

Back to top

How I considered this complaint

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

Back to top

What I found

Relevant law and policy

14. A child or young person with special educational needs (SEN) 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. 
15. There is a right of appeal to the Tribunal against a council’s decision not to carry out an EHC needs assessment.
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)
17. Where the Tribunal orders a council to complete an EHC needs assessment, it must notify the parents it will make an assessment within two weeks. If the Council decides to issue an EHC Plan, they must issue the finalised EHC Plan within 14 weeks of the SEND Tribunal order.

What happened

18. I have summarised below some key events leading to Miss X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
19. On 4 July 2024 the Tribunal ordered the Council to complete an EHC needs assessment for Y.
20. The Council wrote to Miss X to confirm it would complete an EHC needs assessment and explain it would now seek the relevant professional advice.
21. In July 2024 the Council referred Y to an Educational Psychologist (EP) to complete a report for the EHC needs assessment.
22. Miss X asked the Council to also complete an Occupational Therapy (OT) assessment and the Council agreed to do this on 12 August. It then contacted different OT providers to ask for quotes.
23. On 4 September, before the Council had arranged an OT assessment itself, Miss X told the Council she had secured a private OT assessment at a cost of £620. Miss X forwarded the OT report to the Council once it was completed.
24. On 10 October 2024 the Council missed the 14-week deadline to issue a final EHC Plan for Y.
25. On 4 November the Council received the EP report, meaning it had all the professional advice needed to proceed to a decision on the EHC needs assessment.
26. The Council considered Y’s case and the OT report Miss X had commissioned and decided to issue an EHC Plan to support his education. The Council wrote to Miss X to inform her of its decision.
27. In January 2025 the Council issued a draft EHC Plan for Y and began consulting with various schools.
28. Miss X provided her comments on the draft EHC Plan by 16 February. In the meantime, the Council continued consulting with schools.
29. In March 2025 the Council decided to finalise Y’s EHC Plan with “special school” listed as the type of provision and an agreement to provide alternative provision while consultations continued. The Council agreed to provide 10 hours of tuition to Y per week.
30. By the end of April 2025, the Council had received two positive consultation responses from schools and Miss X confirmed that of the two, both her and Y preferred School A.
31. On 10 June, around eight months after the deadline to do so, the Council issued a final EHC Plan for Y, naming School B.

Analysis

32. The Tribunal ordered the Council to complete an EHC needs assessment for Y on 4 July 2024. As the Council decided to issue an EHC Plan, this should have been finalised within 14 weeks, meaning by 10 October 2024. However, the Council did not issue a final EHC Plan for Y until 10 June 2025, eight months after the deadline to do so. This is fault and caused uncertainty and frustration for Miss X, which is injustice.
33. To prevent a recurrence of the delays going forward, the Council has explained it has implemented a recruitment plan to bring in more EPs and ensure there is no delay in receiving advice. I find this is suitable action to prevent a recurrence of the issue Miss X experienced.
34. On 12 August the Council agreed it would commission an OT report for Y and began contacting providers. However, before the Council could arrange an OT assessment, Miss X had secured one privately at a cost of £620. While I do not find the Council at fault for an unreasonable delay in sourcing an OT, it ultimately had agreed to bear the cost of this and used the report Miss X commissioned during the EHC needs assessment process. For this reason, I find the Council ought to reimburse Miss X for the cost of the OT assessment.

Back to top

Action

35. To remedy the injustice caused by the fault identified above, the Council should complete the following actions within one month of the date of this decision:
• Write to Miss X to apologise for the delay in completing Y’s EHC needs assessment and issuing a final EHC Plan. 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 Miss X £800 to recognise the frustration and uncertainty caused by the delay in issuing Y’s final EHC Plan.
• Reimburse Miss X £620 for the OT assessment the Council relied on in Y’s EHC needs assessment.
36. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman