Summary: Miss X complained the Council did not follow the correct timescales in the Education, Health and Care process. Due to the delays she reported, the Council told her that she could commission her own Educational Psychologists report. After she did this, Miss X said the Council told her that it would not use the report as it was commissioning its own. We find the Council at fault, which caused Miss X injustice. The Council agreed to make payments and apologise to Miss X.

The complaint

1. Miss X complains about the Council not following the correct process and delaying her son’s Education, Health and Care (EHC) needs assessment and producing an EHC Plan. Due to the delays, she says the Council told her she could commission her own Educational Psychologist’s (EP) report. Later Miss X says that the Council told her that it would not use the report because it had commissioned its own.
2. Miss X says that this impacted her by causing unnecessary expense in commissioning her own private EP report. It also impacted her child in having to go through the process twice and distress caused by the overall delays in the process.

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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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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)
6. 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

7. Miss X has complained about the continuing delays in the EHC process which have continued even after the Council issued a draft EHC plan. She says that she has had to commission a private Speech and Language Therapist (SaLT) report.
8. I have not investigated this. We cannot usually investigate complaints unless we are satisfied the Council has had a chance to investigate them first. This includes events that are linked to or continuing from the complaint that has been brought to us.
9. Miss X can raise a new complaint, if she remains unhappy with the delays and actions of the Council about the EHC plan process. This would need to be made following the conclusion of the EHC plan process.

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How I considered this complaint

10. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. I have also considered the relevant statutory guidance, as set out below. In addition, I have considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

12. 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.
13. 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
  (Delete irrelevant bullet points)

14. 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. 

What happened

15. Miss X applied for an EHC needs assessment for her child in July 2024.
16. The Council in August 2024 refused to carry out an assessment. Miss X appealed this decision in October 2024. In December 2024, the Council agreed to carry out an assessment.
17. On a telephone call in January 2025, Miss X says the Council told her that she could commission her own EP report. Miss X says that after the Council missed a deadline in February 2025, she commissioned her own private EP report.
18. In March 2025, the Council told Miss X that it would not use the private EP report. However, in May 2025 the Council reversed this decision and told Miss X that it would consider using her EP report.
19. In June 2025, Miss X says that a draft EHC plan was issued by the Council which in part used her EP report.

Analysis

20. Miss X says the Council delayed carrying out an EHC needs assessment, and it delayed in issuing an EHC plan. As I set out in paragraph 12, the timescales the Council had under the code of practice allow the Council six weeks to decide whether to commission an assessment.
21. The Council by responding in August 2024 met this timescale, although I acknowledge that Miss X did not agree with the Council’s determination about this. However, she was entitled to appeal this decision which she did in October 2024.
22. Once the Council decided to carry out an assessment, in December 2024, it had 16 weeks to decide whether to issue an EHC Plan or refuse to do so. Therefore, in this case, the Council should have decided by 6 April 2025. It did not issue a draft of the EHC plan until June 2025, a delay of two months in accordance with the code of practice.
23. I consider the Council at fault for the delay in issuing a decision regarding the EHC plan. This would have impacted Miss X by causing her distress in the form of uncertainty as well as having to contact the Council to request an update.
24. The Council has previously assured the Ombudsman of the actions it is taking to address delays in the EHC Plan process. I am therefore satisfied the Council has a plan to address this issue.
25. The distress Miss X experienced was also increased by the inconsistent response by the Council into the EP report. The Council has accepted in May 2025, that it gave the impression to Miss X that it would use her EP report if she commissioned one. It has since partially used Miss X’s EP report in the draft EHC plan.
26. There is no requirement for the Council to use a privately commissioned EP report. However, the evidence supports the Council encouraged Miss X to commission one. It also shows the Council went on to use it partially. The Ombudsman therefore considers it fair in these circumstances that the Council should reimburse the cost incurred by Miss X.

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Action

27. Within four weeks of my final decision the Council has agreed to:
1. Provide a written apology to Miss X for the unnecessary and avoidable distress caused by the delays in the EHC plan process.
2. Pay £200 (£100 per month of delay) for the delay in the EHC plan process
3. Pay £1,974.40 in reimbursement of the cost for the EP assessment.
28. 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.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. I find fault causing injustice. The Council has agreed to apologise and make a payments to Miss X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman