Summary: The Council was at fault in relation to Miss X’s child, Y’s, Education, Health and Care (EHC) Plan reassessment when it delayed making a decision and did not give her appeal rights to the Tribunal. But this did not cause Miss X a significant injustice in the investigation period. The Council was not at fault when it issued Y’s EHC Plan and gave Miss X her appeal rights in September 2024. It used the process we would expect.

The complaint

1. Miss X complained she was unhappy with the mainstream college named in her child, Y’s, EHC Plan and was unhappy with Y’s annual review process and a Council reassessment decision. She also said the Council failed to secure special educational provision set out in section F of Y’s, EHC Plan from September 2024. Miss X also complained the Council had poor communication and dealt with her complaints poorly. As a result Miss X said Y missed education to which they were entitled and their emotional well-being suffered. Miss X said it caused her distress affecting her mental and physical wellbeing.

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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. 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 s34H(1), as amended)
3. 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)
4. 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)
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 SEND Tribunal in this decision statement.
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

8. As explained in paragraph four above we cannot investigate late complaints unless we decide there are good reasons. Miss X complained to the Ombudsman in early July 2025 about events starting in January 2024. The period between January 2024 and June 2024 is late and there are no good reasons to exercise discretion to investigate that late period because Miss X could reasonably have complained to us earlier.
9. I have investigated between July 2024, a year before Miss X complained to us and mid-September 2024 when the Council issued Y’s final amended Education, Health and Care (EHC) Plan. In mid-September 2024 Miss X had appeal rights to the special educational needs and disabilities (SEND) Tribunal about Y’s college placement and special needs provision, which she did not exercise.

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How I considered this complaint

10. I considered evidence provided by the Council and Miss X and spoke to her on the telephone. I also considered relevant law, policy and guidance.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

12. A child or young person with special educational needs may have an Education, Health and Care (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 SEND Tribunal or the council can do this. Section F sets out the educational provision needed by the child or young person and Section I sets out the name and/or type of school.

Appeal rights to the SEND Tribunal

13. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
14. The courts have established that if someone has appealed to the SEND 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. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
15. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. If the parent or young person does not appeal but should have, then the period we cannot investigate ends when the Council makes another appealable decision.

Reassessment of EHC Plans

16. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.
17. The council can refuse a request for a reassessment if it does not think it is necessary, for example because it does not feel a child or young person’s needs have changed significantly.
18. The council must tell the child’s parent or the young person whether it will complete an EHC needs reassessment within 15 calendar days of receiving the request. If the decision is not to reassess, the council must also provide information about the right to appeal that decision to the Tribunal.

What happened

19. Y has special educational needs including Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD) and dyslexia. In July 2024 Y was of secondary school age and at the end of their compulsory schooling at a mainstream school, School 1.

Background

20. Y first had an Education, Health and Care (EHC) Plan in 2022 which named a mainstream school, School 1.
21. Y’s phase transfer to post 16 education annual review was held in mid-January 2024. The annual review record showed Y wanted to attend a mainstream college, College 1 but Y had also applied to School 1 sixth form. Officer 1 said they would also put an application into a local mainstream college, College 2 so it was an option on results day. Y’s mother, Miss X, had concerns how Y would cope with a mainstream College in September 2024. At the annual review Miss X requested an educational psychology (EP) reassessment following Y’s autism diagnosis. A key action from the annual review was for a Council SEND officer, Officer 1 to arrange an EP reassessment for Y.
22. In March 2024 the Council issued Y’s EHC Plan and named School 1 sixth form to start in September 2024 and gave Miss X her appeal rights.
23. In spring 2024 Miss X emailed the Council several times about her concerns that no EP reassessment had been carried out and she said she was unsure which educational placement Y would attend in September 2024.

July 2024 onwards

24. In early July 2024 Miss X and Y visited a special sixth form college, College 3. College 3 said it could meet Y’s needs and offered Y a placement for September 2024.
25. In mid-July 2024 Officer 1 emailed Miss X and said a Council panel had decided College 3 was an inefficient use of the Council’s resources because of the cost of the special college and transport costs compared against the local mainstream sixth form college, College 2. The panel was in agreement with naming College 2 (most local appropriate college) or College 1 in line with Y’s aspirations. Officer 1 asked Miss X how she would like to proceed.
26. In early August 2024 Miss X emailed the Council. She was unhappy about the Council’s decision not to name College 3 and asked the Council for a costing breakdown. Miss X said Y’s EHC Plan had not been updated since 2022 and since Y’s autism diagnosis. She was concerned the panel therefore made Y’s college choice based on out of date information. Miss X was also unhappy the Council had not commissioned a new EP assessment as agreed at Y’s annual review in early January 2024. The Council replied the same day and provided Miss X with Y’s draft EHC Plan for her consideration and agreement and gave her 15 days to comment. Miss X replied the same day and agreed to consider Y’s draft Plan.
27. Miss X then complained about the Council’s handling of Y’s annual review process. She said an EP reassessment had been agreed but not carried out and the Council had failed to name College 3 for Y to attend in September 2024.
28. The Council sent Miss X its stage one complaint response. The Council explained Officer 1 requested for a new EP assessment to be considered but it was not agreed. It said a SEND officer could only refer the request but not make a decision themselves. It acknowledged Y had a new autism diagnosis but that alone would not be a reason for an EP reassessment. It would only commission a new assessment if there was a significant change in need. It maintained Y’s EHC Plan in 2022-2023 and issued Y’s final amended EHC Plan in March 2024. This named School 1 sixth form and consultations were sent to College 1 and 2. It said Miss X had Y’s draft Plan and once finalised she had a right of appeal.
29. In mid-August 2024 Miss X requested the Council carried out a needs reassessment for Y. She said Y’s needs had changed following their autism diagnosis and wanted Y to attend College 3. She did not think College 2 could meet Y’s needs. Miss X was also unhappy she had not been told about the correct EP process at the annual review. The same day Miss X escalated her complaint to stage two of the Council’s complaints process.
30. In early September 2024 the Council emailed Miss X and apologised for the delay in replying to her reassessment request. It had logged the request which would be taken to the Council EHC needs assessment panel. It would send Miss X its decision.
31. In mid-September 2024 the Council emailed Miss X and said the SEND panel had decided there was no significant change of need requiring reassessment for Y. The panel recognised Y’s new autism diagnosis which would be added to Y’s draft EHC Plan. It said provision was needs led not diagnosis led so it would not impact on Y’s provision. It said Officer 1 would send Miss X Y’s amended EHC Plan noting Y’s ASD diagnosis.
32. In mid-September 2024 the Council sent Miss X its stage two complaint response. The Council confirmed the transport costs to College 1, College 2 and College 3. The Council also reconfirmed that only a Council panel, not Officer 1 could decide about an EP reassessment for Y. It said Y had enrolled at College 1 and it would finalise Y’s EHC Plan naming College 1 which would give Miss X her appeal rights. It noted it previously named School 1 sixth form in Y’s March 2024 final amended EHC Plan and the reasons why it had consulted different colleges. It said if Miss X was unhappy she could complain to us.
33. In mid-September 2024 the Council issued Y’s final amended EHC Plan naming a mainstream college, College 1. The Council gave Miss X her appeal rights to the SEND Tribunal. Miss X did not submit an appeal.
34. Miss X complained to us in early July 2025.

Enquiries

35. In response to my enquiries Miss X told me she did not appeal to the SEND Tribunal when she received Y’s final amended EHC Plan in September 2024 because:
• the January 2024 annual review amendments, Y’s new autism diagnosis, EP reassessment and post 16 placement were not in Y’s mid-September 2024 EHC Plan;
• the Council did not issue a draft EHC Plan for Y in 2024, give a 15 day consultation period on a draft plan or issue a lawful final amended EHC Plan in September 2024. It had not provided lawful appeal rights or followed the statutory process; and
• Y’s lawful final amended plan was issued in summer 2025.

My findings

Reassessment

36. The Council acknowledged Miss X’s reassessment request from mid-August 2024 in early September 2024 and apologised for the delay. A Council panel decided in mid-September 2024 that Y did not have a significant change of need. This was a decision it was entitled to make but the decision was not made within 15 calendar days and was a delay of approximately two weeks. This was a short delay, the Council has already apologised and it did not cause Miss X a significant injustice. In addition the Council did not give Miss X her appeal rights about the reassessment decision. But Miss X did get her appeal rights for Y’s final amended EHC Plan a few days later so this fault also did not cause Miss X a significant injustice.

EHC Plan

37. Miss X was unhappy the Council did not update Y’s EHC Plan. The Council was not at fault within the investigation period because it issued a draft Plan to Miss X in early August 2024 and asked for her comments. Miss X said she would consider the draft plan in early August 2024. The Council issued Y’s final amended EHC Plan in mid-September 2024 and gave Miss X her appeal rights. Miss X did not think the Council had followed the statutory process and had not issued a lawful final amended EHC Plan so did not appeal to the SEND Tribunal. The Council did follow the process we would expect, it was not at fault.

Communication and complaints handling

38. Within the investigation period the Council communicated regularly with Miss X about her concerns and responded to her complaints in a timely manner. The Council was not at fault within the investigation period.

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Decision

39. I have completed my investigation finding fault caused by delay and no appeal rights in relation to Y’s EHC Plan reassessment but it did not cause Miss X a significant injustice.

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Investigator's decision on behalf of the Ombudsman