Summary: We have upheld Ms X’s complaint about delay in the Education, Health and Care needs assessment for her child. The Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused. We cannot investigate Ms X’s complaint about the Council’s refusal to refund her costs for specialist reports.

The complaint

1. Ms X complains about delays in the Education, Health and Care (EHC) needs assessment process for her child, Y. She also complains the Council has refused to refund her costs for privately-commissioned specialist reports.

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 provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
3. 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). The same restrictions apply where someone has a right of appeal to the Tribunal and it is reasonable for them to use that right.
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. 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

How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. If we investigate this complaint, it is likely we would find fault causing injustice. This is because in its complaint response, the Council accepted it has not completed Y’s EHC needs assessment within the statutory timescales. It said the delay was due to the national shortage of Educational Psychologists.
9. Since Ms X brought the complaint to us, the Council has completed its assessment. It has agreed to issue Y an EHC Plan, but not yet done so. This is likely to have caused Ms X and Y frustration and distress. To comply with the statutory timescales, the Council should have issued the final EHC Plan by 30 April 2025.
10. We therefore invited the Council to remedy the injustice caused by agreeing to pay Ms X £100 per month of delay, to be calculated from 30 April 2025 until the Council issues the final EHC Plan. The Council agreed to our recommendation.
11. We have recently upheld other complaints about delays with the Council completing EHC needs assessments due to the national shortage of Educational Psychologists and we are satisfied that the Council is actively taking steps to resolve this issue.  
12. We cannot investigate Ms X’s complaint about the Council’s refusal to refund her the cost of privately-commissioned specialist reports. It was Ms X’s choice to pay for the reports, and we cannot require the Council to use them as part of its needs assessment or refund the costs of these. Once Y’s EHC Plan is finalised, Ms X will have a right of appeal to the SEND Tribunal, if she is unhappy with the content of the plan. If she believes the Council’s refusal to pay for or use the reports as part of Y’s needs assessment has contributed to an inadequate plan, she can raise this with the Tribunal as part of her appeal.

Back to top

Agreed action

13. Within one month of issuing the final EHC Plan, the Council will calculate and pay Ms X £100 per month of delay as a remedy for the frustration and distress caused by the delay in the process. This should be calculated from 30 April 2025 until the date the Council issues the final EHC Plan.

Back to top

Final decision

14. We have upheld Ms X’s complaint about delay in the Education, Health and Care needs assessment process. The Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused. We cannot investigate Ms X's complaint about the Council’s refusal to refund the cost of specialist reports.

Back to top

Investigator's decision on behalf of the Ombudsman