Summary: We upheld Mrs X’s complaint about delays in the Education, Health and Care needs assessment process because the Council upheld the complaint and apologised. We cannot investigate Mrs X’s complaint about an Educational Psychology report because Mrs X appealed to a Tribunal.

The complaint

1. Mrs X complains about:
1. delays in the Education, Health and Care (EHC) process regarding her child, Y; and
2. the process of obtaining, and the quality of, the Educational Psychologist’s report.
2. Mrs X said the matter caused her frustration, uncertainty and distress.

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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 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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.
6. 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)
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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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Mrs X asked the Council to conduct an EHC needs assessment of her child, Y. The Council wrote to Mrs X approximately six weeks later in early July 2024 and told her it would not conduct an EHC needs assessment.
11. In September 2024 Mrs X and the Council engaged in mediation. The Council agreed as part of the mediation to conduct an EHC needs assessment of Y.
12. The Council concluded the process in late January 2025. It wrote to Mrs X and told her it would not make an EHC Plan for Y.
13. Mrs X appealed the decision to the SEND Tribunal.
14. Mrs X also complained to the Council. She said it failed to adhere to the statutory timescales regarding the EHC process. She also complained about the quality of the EHC needs assessment process including her disagreement with the Council’s Educational Psychologist’s report and their involvement.
15. The Council responded to Mrs X and upheld her complaint about delays in the EHC needs assessment process. It apologised and told Mrs X it acknowledged her appeal to the SEND Tribunal about the decision not to make an EHC Plan.

Analysis

EHC needs assessment delay

16. We uphold Mrs X’s complaint about delays in the EHC needs assessment process.
17. To comply with the SEND regulations, because it decided not to make an EHC Plan for Y, the Council should have made the decision within 10 weeks of the mediation certificate. It did not do so until 20 weeks later. This is a 10-week delay. The Council upheld the complaint and apologised to Mrs X.
18. In response to other recent investigations by the Ombudsman the Council provided evidence of changes to its processes including its SEND improvement plan.
19. Consequently, although we uphold Mrs X’s complaint, we will not investigate further because the Council has already apologised, and it is implementing changes to its service to prevent reoccurrence of the fault.

Educational psychology report

20. We cannot investigate Mrs X’s complaint about the Educational Psychologist’s involvement or their report. This is because Mrs X has appealed to the SEND Tribunal about the decision not to make an EHC Plan for Y.
21. The consequence of Mrs X’s complaint is that the Educational Psychology report is flawed, and this meant the Council decided not to make an EHC Plan for Y. Mrs X appealed the decision to the Tribunal.
22. The Tribunal has wide ranging powers to order reports or act to enable it to make decisions as part of its own process. Because the Tribunal has the power to order either updated or new Educational Psychology reports the law says we cannot investigate this matter.

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Final decision

23. We upheld part of Mrs X’s complaint because the Council upheld the complaint and provided an appropriate remedy. We cannot investigate part of the complaint because Mrs X appealed to a Tribunal.

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Investigator's decision on behalf of the Ombudsman