Summary: Mrs X complained the Council failed to complete an Education, Health and Care needs assessment within statutory time limits, failed to refund her for the costs of a private report she commissioned, failed to secure all educational provision for Y, and communicated poorly. The Council was at fault for delays in completing the assessment and in responding to Mrs X’s request for a personal budget. The Council should apologise to Mrs X and make a payment to recognise the injustice caused.

The complaint

1. Mrs X complains about the Council’s handling of her son, Y’s Education, Health and Care (EHC) needs assessment and its failure to secure provision for him. Mrs X says this has caused real frustration and uncertainty.
2. Specifically, Mrs X has said:
• The Council was around 12 months late in completing the EHC needs assessment and issuing an EHC Plan;
• Due to the delays, she commissioned a private Educational Psychology (EP) report, which the Council relied on in the EHC Plan but has refused to reimburse her for;
• The Council failed to respond to her request for a personal budget;
• The Council failed to secure provision for Y between September 2024 and December 2024; and
• Communication has been poor throughout.

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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. 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)
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).

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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. We cannot usually investigate complaints about events that took place more than 12 months before they were raised with the Ombudsman. We can only exercise discretion to look back further if there are good reasons to do so.
10. Mrs X brought her complaint to us in March 2025, meaning anything that happened prior to March 2024 is late. However, the Council was responsible for delays and Mrs X then brought her complaint to us within 12 months of the final EHC Plan being issued. For this reason, I have exercised discretion to look back to the point the EHC needs assessment was requested in October 2022.
11. I have investigated up to December 2024.

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How I considered this complaint

12. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
13. Mrs X and the Council 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

EHC needs assessment

14. 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. 
15. On receiving a request for an EHC needs assessment, a council must decide whether an assessment is necessary. As part of an EHC needs assessment, a council must seek advice from the parent, head teacher of the school, and from any other professionals, including an EP.
16. 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 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 a Council decides to assess a child’s EHC needs, they must gather information from relevant professionals, who must respond within six weeks;
• If the Council decides not to issue an EHC Plan, it must explain this within 16 weeks from the date of the request.
• If it decides to issue an EHC Plan, the Council must then send a draft plan to the child’s parents, giving them 15 days to comment; and
• 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.
17. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).
18. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

What happened

19. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything said and submitted, this is not intended to be a detailed account of what took place.
20. The Council received an EHC needs assessment request for Y on 19 October 2022. The Council considered this request and wrote to Mrs X to confirm it would complete an EHC needs assessment. The Council then requested the relevant advice for the assessment.
21. On 8 March 2023, the Council missed the 20-week deadline to complete the assessment and issue an EHC Plan, if that is what it intended to do.
22. The Council received all the advice, including an EP assessment, by 28 July and wrote to Mrs X on 9 August to confirm it intended to issue an EHC Plan for Y.
23. The Council issued a draft ECH Plan on 16 August.
24. In January 2024 Mrs X contacted the Council to ask for an update. Mrs X also provided the Council with an EP report she had privately commissioned, dated 17 January.
25. In February 2024 the Council’s governance board considered reimbursing Mrs X for the cost of the EP report. The notes from this meeting show the Council decided the private EP report did not contradict the one the Council had commissioned and gave no additional recommendations. The Council agreed to reference the EP report in the EHC Plan but deemed it not to have been necessary and so decided not to refund the cost of it.
26. The Council issued a final EHC Plan for Y on 22 March, around 12 months after the deadline to do so. The Council’s notes show that Mrs X contacted the Council that day to ask it to discuss a personal budget to cover the costs of existing therapies. However, its notes do not show how it responded to this until the issue was raised again around six months later.
27. In September 2024 Mrs X contacted the Council again to ask it to consider a personal budget.
28. In October 2024 the Council’s governance board considered Mrs X’s request for a personal budget. The board found Y’s EHC Plan provision was already being met at school and there was no reason to pay Mrs X a personal budget.
29. Y’s attendance at school across September 2024 and October 2024 was 100%. Y’s attendance across November 2024 and December 2024 was 76.47% due to authorised absences to attend medical appointments.

Analysis

30. The Council initially received a request to assess Y’s EHC needs on 19 October 2022. The Council promptly informed Mrs X it would complete an EHC needs assessment and set out the next steps but missed the deadline by which to decide whether it would issue and EHC Plan for Y. This is fault and caused uncertainty for Mrs X and Y, which is injustice.
31. If the Council had completed the EHC needs assessment in line with statutory time limits, Y’s EHC Plan would have been finalised by 8 March 2023. However, the Council did not finalise Y’s EHC Plan until 22 March 2024, 12 months after the deadline to do so. This is a considerable delay which caused significant uncertainty and frustration for Mrs X, as well as frustrating her rights to appeal to the tribunal. The delays also created uncertainty around whether Y was missing out on special educational provision he would have been entitled to between March 2023 and March 2024. This is injustice.
32. The Council has already offered to pay Mrs X £1,200 in recognition of the delay. I find this is a suitable remedy to the injustice caused here, and in line with the Ombudsman’s guidance on remedies.
33. While there were significant delays in obtaining an EP assessment, the Council received the EP report it had commissioned in July 2023 and used this to inform the EHC needs assessment. Mrs X then commissioned her own EP who completed another report around six months later, and after the initial draft EHC Plan had been issued. I have seen no evidence to suggest Mrs X had informed the Council she was seeking a private EP report or for it to agree to cover the costs of this.
34. The Council retrospectively considered whether to reimburse Mrs X for the cost of the report but decided as it had not been previously agreed and as it did not provide any new information, there was no reason for it to do so. I do not find fault with the Council’s decision-making process here so I would not ask it to refund the cost of the private EP assessment.
35. Mrs X asked the Council to consider providing a personal budget in September 2024. The Council considered Mrs X’s request and decided that, as the provision set out in Y’s EHC Plan was already being met, there was no need for a personal budget. I do not find fault with the Council’s decision-making process here.
36. However, the Council’s notes show Mrs X first asked it to consider a personal budget in March 2024, but there is nothing to show how this was responded to at the time. This amounts to fault and caused uncertainty for Mrs X over the period of around six months, which is injustice.
37. Y’s school has confirmed to the Council that the provision set out in his EHC Plan was secured for him between September 2024 and December 2024 and Y’s attendance across that time was at a high level. This is confirmed in the notes from the Council’s governance board consideration of whether to provide Mrs X with a personal budget. I do not find the Council at fault for failing to secure provision for Y between September 2024 and December 2024.
38. Mrs X has said the communication with the Council has been poor and she often made calls that went unanswered or unreturned. The Council has provided me with a brief chronology of the communication between it and Mrs X. Having looked through this, I cannot see the Council was responsible for any unreasonable delays beyond those identified above, so I do not find it at fault here.

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Action

39. To address the injustice identified above, the Council should carry out the following actions within one month:
• Provide Mrs X with a written apology for the injustice caused by the failure to complete Y’s EHC needs assessment within the statutory time limits and for failing to respond to her personal budget request in March 2024. 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 Mrs X the £1,200 it had previously offered if this has not already been paid; and
• Pay Mrs X a further £100 in recognition of the uncertainty caused by the failure to respond to her request for a personal budget in March 2024.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman