Summary: We cannot investigate Miss X’s complaint about the process the Council followed in deciding her son’s special educational needs support. She had a right of appeal to the SEND Tribunal about these matters, and our role cannot overlap that of the Tribunal. However, the Council was at fault for a delay in deciding Miss X’s son’s support. It has agreed to apologise, and it will take steps to improve its service.

The complaint

1. Miss X complains that the Council was responsible for failures in how it decided her son’s (Y’s) special educational needs support. She says the Council:
• failed to obtain occupational therapy, speech therapy and paediatric advice, despite agreeing to do so;
• used an occupational therapy assessment she paid for privately, but failed to pay for the assessment; and
• caused delays deciding Y’s support.
2. Miss X says the Council’s failings led to it putting inadequate support in place for Y, which means his special educational needs are not met. She also says she herself suffered a financial injustice (from paying for the occupational therapy report) 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 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 cannot investigate a complaint if someone has (or could have) 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)
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. If we are satisfied with a council’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. I cannot investigate anything which trespasses on the jurisdiction of the Tribunal (R v Local Commissioner for Administration for the North and East of England ex parte Bradford Metropolitan City Council [1979] QB 287). Miss X’s complaints about how the Council decided Y’s special educational needs support fall squarely within that jurisdiction.
9. The processes of obtaining professional advice and consulting schools are central to a council’s duties in deciding a child’s special educational provision. The outcome of these processes – the content of the child’s education, health and care (EHC) plan – is appealable to the Tribunal.
10. I accept that Miss X wants us to look at the process, not the outcome. But, even if something is not the “substance” of an appeal, we must still exclude it under 26(6)(a) of the Local Government Act 1974 if it constituted a “substantial part” or was “integral to” the issues that needed to be resolved by the Tribunal (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). This applies in Miss X’s case.
11. Although Miss X did not actually appeal, this does not change our approach, as section 26(6)(a) of the Act says we exclude “any action in respect of which the person affected has or had a right of appeal” (my underlining).
12. We do have some discretion, under the Act, to consider such complaints if it would not have been reasonable to expect someone to appeal.
13. I am aware that Miss X decided to get a new educational psychologist’s report before appealing, which has delayed the process. But this was a matter of choice, rather than something which meant it was unreasonable to expect her to appeal.
14. With the above in mind, I am unable to comment on anything related to the decisions the Council took about Y’s special educational needs support, including the processes it followed in arriving at those decisions.
15. I have, however, considered Miss X’s complaints about delay and about needing to pay for an occupational therapy report.

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How I considered this complaint

16. I considered evidence provided by Miss X and the Council as well as relevant law and guidance.
17. Miss 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

Law and guidance

18. A child with special educational needs may have an EHC plan. This document describes the arrangements which should be made to meet the child’s needs.
19. The process of deciding whether a child needs an EHC plan is routinely referred to as an EHC needs assessment.
20. 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. 
• Social care advice and information. 
• Advice and information from any person requested by the parent or young person, where the council considers it reasonable. 
• Any other advice and information the council considers appropriate for a satisfactory assessment. 

21. If the child’s parent requests additional advice, for example from an occupational therapist or speech therapist, the council should decide if this is necessary based on the individual circumstances of the case.
22. Statutory government guidance (the ‘SEND code of practice’) says that, within six weeks of receiving a request for an EHC needs assessment, the council must write to the child’s parent and tell them whether it will do an assessment.
23. If the council goes on to issue an EHC plan, the whole process (from the assessment request to the plan being issued) must take no more than 20 weeks.

What happened

24. Miss X contacted the Council in early February 2025 and asked for an EHC plan for Y. In mid-February, the Council agreed to start an EHC needs assessment.
25. Miss X wanted the Council to seek occupational therapy advice for the assessment. But the Council pointed out that, as Y was not known to the local NHS occupational therapy service, it would not provide any advice.
26. The Council asked Miss X to arrange a referral for Y to get an NHS occupational therapy assessment (via his nursery). It said that, once an assessment had been completed, the Council would incorporate this into his EHC plan.
27. Miss X told the Council that she still wanted it to seek occupational therapy advice. It agreed, but noted that the likely outcome would be that the NHS service would say it did not know Y.
28. The Council consulted the NHS occupational therapy service. It received a response, saying the service had received no referral about Y and was unaware that he had any difficulties which required assessment. The response said the EHC needs assessment process was not “an appropriate mechanism to request [therapy] assessments”.
29. The NHS told the Council that it “would need to consider if it's reasonable to commission a private [therapy] report based on … the evidence you have available”.
30. The Council wrote to Miss X and said that, as Y was not known to the NHS occupational therapy service (which the Council would usually expect a child to be if they had difficulties in that area), it would not commission its own report privately. It noted that decisions on whether parental requests for advice are ‘reasonable’ rests with councils.
31. In early May, Miss X provided the Council’s educational psychologist with a private occupational therapy report to be used in the EHC needs assessment. Miss X tells me that the report cost her £765 (and has provided an invoice to that effect).
32. The educational psychologist completed her report in late May. But the Council told Miss X that it would be unlikely to meet its 20-week deadline for Y’s EHC plan. It said this was because it received late advice from other agencies.
33. Miss X asked the Council if it would use the private occupational therapy report in its decision-making. The Council said it would need to take Y’s case to its ‘resource allocation panel’ the following month. The panel would decide whether to use the report. It would also decide if Y needed an EHC plan.
34. Miss X wrote to the Council’s Head of SEND, raising concerns about how the long EHC assessment process was damaging her attempts to prepare Y properly for starting his new school in September.
35. Miss X says the Council issued a draft EHC plan in late June. It then issued Y’s final EHC plan in August, naming a school for him. The plan makes clear that the Council took account of the occupational therapy report Miss X had provided.
36. The Council has accepted that there was a delay to Y’s EHC plan and has apologised. However, it has told Miss X that the delay caused Y no significant injustice, because at that point he had not yet started school (and therefore he did not miss any educational provision).
37. Miss X disagrees. She says the delay to Y’s EHC plan meant he missed out on an “enhanced transition” needed to prepare him for school. She says he missed out on “school readiness sessions” at their local children’s centre because, at the times the sessions were available, he had no allocated school.
38. Although the Council considered Miss X’s private occupational therapy report in deciding Y’s special educational needs provision, it does not believe it should pay her for the report. It says:
• It used the report because it was under the duty to consider information provided by Miss X as Y’s parent.
• However, this matter could have been dealt with under the usual NHS referral process, and it told Miss X this in advance. It was right not to commission a private report itself, because there was no evidence Y needed one.
• Although it used the report, it was Miss X’s decision to get the report. The Council does not endorse her decision to do this, and it did not agree to either commission the report or refund her in advance.

My findings

39. As the Council has already acknowledged, it was at fault for the delay to Y’s EHC plan. Although the delay, at around eight weeks, was not excessively long – and I take the Council’s point about Y not missing any educational provision – this does not necessarily mean no injustice was caused.
40. Miss X says Y needed significant support with the transition to school. She says not knowing where he was going made this more difficult. While I do not know Y, and I cannot say the extent to which this was true, it is certainly plausible that a child with additional needs would need extra help preparing to start a new school. Miss X raised this as a concern at the time.
41. The Council’s delay meant Y was given less than two weeks between finding out where he was going to school and starting there. I am satisfied, on balance, that this means he suffered some distress.
42. I am also satisfied that this delay caused Miss X an injustice. She was contacting the Council regularly throughout the process and was concerned about how the uncertainty was affecting her preparation for Y’s transition to school. The eight-week delay will have caused her some distress.
43. The Council has apologised to Miss X, but has not accepted the impact that the delay had on her and Y. It should now write to her again with a more detailed apology. It should also make improvements to its service.
44. I cannot comment on the dispute between Miss X and the Council about which reports were needed from which professionals. The Council’s view is that Miss X decided to fund the private occupational therapy report herself, and, although the Council then used the report in Y’s EHC plan (because it had a duty to consider information Miss X provided), this matter could have been dealt with under the NHS’ usual referral processes.
45. I am satisfied that the Council did not, at any point, agree to fund the private report, and nor did it encourage Miss X to commission the report (or even agree that she should do so).
46. Miss X’s decision to commission the report probably meant Y’s occupational therapy provision was decided quicker, which was to his benefit. But as this decision was not imposed on her, and was not made necessary because of fault by the Council, I will not recommend that she be reimbursed.

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Action

47. Within four weeks, the Council has agreed to apologise to Miss X for the delay in issuing Y’s EHC plan, and for the distress this caused both of them. We publish guidance which sets out what we expect an effective apology to look like. The Council will consider this guidance when writing to Miss X.
48. Within 12 weeks, the Council has agreed to write to us, identifying each of the reasons for its delay to Y’s EHC plan (such as delays acquiring professional reports) and setting out (with evidence) how each issue will be resolved to prevent similar delays in future.
49. The Council will provide us with evidence it has done these things.

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Decision

50. The Council was at fault, and this caused injustice to Miss X and Y, which it will now take action to address.

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Investigator's decision on behalf of the Ombudsman