Summary: The Council was at fault for delay in allocating an Educational Psychologist to assess Mr and Mrs X’s child, W, for an Education, Health and Care Plan. This caused Mr and Mrs X frustration for which the Council will make a symbolic payment. The Council is already taking suitable action to prevent similar fault in future.

The complaint

1. Mr and Mrs X complained the Council wrongly decided not to assess their child, W, for an Education, Health and Care Plan, and that after later deciding it would assess W, it took too long doing so.
2. Mr and Mrs X said this meant W’s grades worsened at school, they were exposed to abuse at school, their wellbeing declined and the wider family were negatively affected too.
3. Mr and Mrs X also complained about the Council’s children’s service. They said:
• Several years ago, the Council decided W did not have health needs and instead attributed their difficulties to Mr and Mrs X’s parenting. They said the Council has continued in that view to the present day, which has prevented W and their sibling from access necessary services and support, at home and in school.
• The Council denied W was disabled in an assessment report issued in February 2025 and refused to correct it; and
• The Council did not listen their children.

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The Ombudsman’s role and powers

4. 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)
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), 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. 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)
9. Mr and Mrs X complain about the Council’s historical decision that their actions were responsible for W’s challenges, not their health needs, and the subsequent impact of that decision over the past few years. The Council made its decision several years ago and I have seen no good reason why Mr and Mrs X could not have complained to us sooner, so I have not investigated that matter. In addition, we have already considered and decided not to investigate previous complaints Mr and Mrs X made about the decision and its consequences and we do not reinvestigate matters we have already considered.
10. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
11. We have not previously investigated Mr and Mrs X’s concerns about the children’s service’s February 2025 assessment report. However, I will not investigate it because the Council has confirmed the assessment does not deny W is disabled and refers to W’s diagnosis throughout the assessment. There is insufficient evidence of fault to justify investigation.
12. In any event, we do not start or continue an investigation if we decide there is another body better placed to consider a complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
13. Mr and Mrs X have the right to request the Council rectify the information in the report under the General Data Protection Regulation (GDPR). They can do this by complaining to the Information Commissioner’s Office and it is reasonable for them to do so.
14. Mr and Mrs X say the Council’s report has meant W’s school have acted wrongly. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan. That does not apply here, so I cannot consider the school’s actions.
15. I have not investigated Mr and Mrs X’s complaint that the Council has not listened to their children’s views because Mrs X has made that complaint to us previously and we decided not to investigate it.
16. The law says we cannot investigate a complaint when someone has used their right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
17. Mr and Mrs X is unhappy the Council initially decided it would not assess W for an EHC Plan. However, they used their right of appeal to the SEND Tribunal to challenge that decision. As a result, I cannot investigate the Council’s decision.
18. My investigation therefore considers whether the Council was at fault for delay assessing W for an EHC Plan. It covers the period between August 2025 and May 2026.

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How I considered this complaint

19. I considered evidence provided by Mr and Mrs X and the Council as well as relevant law, policy and guidance.
20. Mr and 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

Relevant law and guidance

Education, Health and Care Plans

21. Children with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
22. 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:
• Where a council receives a request for an EHC assessment it must decide whether to agree to the assessment within six weeks. If the council decides it will not assess a child, the child’s parent or guardian can appeal that decision to the SEND Tribunal;
• If the Tribunal directs the council to carry out an assessment, it must notify the child’s parents of its decision to assess within two weeks of the Tribunal’s order;
• If, following the assessment, the council decides it will not issue the child an EHC Plan, it must notify the parents within 10 weeks of the Tribunal’s order;
• If the council decides it will issue an EHC Plan for the child, it must do so within 14 weeks of the Tribunal’s order;
• Councils must consult the child and child’s parent throughout the assessment process and production of the final EHC Plan; and
• As part of the EHC assessment councils must gather advice and information from certain sources. This includes an Educational Psychologist (EP). Councils cannot conclude an assessment without that information.

What happened

23. This section sets out the key events in this case and is not intended to be a detailed chronology.
24. Mr and Mrs X asked the Council to assess W for an EHC Plan. After considering the request, the Council refused to carry out the assessment.
25. Mr and Mrs X appealed to the SEND Tribunal and in early August 2025, the Tribunal issued its order which required the Council to assess W.
26. The Council issued its decision to assess W in mid-September and placed them on a waiting list for an EP assessment. In the meantime, it sent Mr and Mrs X a form to seek their view on W’s needs. Mr X acknowledged receipt of the form, but he and Mrs X have not returned a completed copy.
27. Throughout the assessment process, Mr and Mrs X raised historical issues about the Council’s involvement with W and expressed that they wanted to have sight of the other information the Council had gathered as part of the assessment. This was particularly in relation to W’s school, with whom Mr and Mrs X’s relationship is poor. Mr and Mrs X also repeated their view that the Council was delaying the assessment and was at fault for not seeking their views at every stage of the assessment process.
28. An EP was allocated to W’s case and was due to assess them in early December. However, Mr and Mrs X did not consent to the assessment so it could not go ahead.
29. In mid-December, the Council told Mr X that while they were waiting for the EP assessment, it would be happy to discuss next steps. Mr X declined.
30. In mid-December, Mr X gave the EP consent to do the assessment and the EP asked when a suitable date for the assessment would be.
31. In mid-January 2026, Mr and Mrs X told the Council that once it responded to the matters they had raised previously, they would be willing to have a planning meeting with the Council and then meet with the EP.
32. Mr and Mrs X told the Council the EP had said they could not do the assessment without documentation they wanted the Council to provide. There is no evidence of this.
33. In early February, the Council confirmed the EP was only waiting for a suitable date and time from Mr and Mrs X. It noted that while Mr and Mrs X had consented to the EP assessment, they had not consented for the EP to assess W at school, because they were unhappy with the information the school had given the Council about W’s needs. The Council confirmed the EP would need to assess W in school as the assessment related to their special educational needs. The Council asked Mr and Mrs X to consent to the assessment in school.
34. Mr and Mrs X did not consent. Mrs X told the Ombudsman the EP needed sight of documentation about W and could not progress the assessment without it, but the Council was not providing the documents.
35. In late May, Mrs X told the Ombudsman the Council had agreed to mediation to try and progress the assessment, but she felt it was delaying that process.

Findings

36. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
37. After the Tribunal directed the Council to assess W in early August 2024, the Council had two weeks to issue its decision to assess. It did so three weeks late, which, while outside the statutory timescale, was not a significant breach and so does not amount to fault.
38. The Council then had to decide if it would issue W an EHC Plan by mid-October. However, EP advice is the key professional advice needed as part of an EHC assessment and the Council was not able to allocate an EP to W’s case until early December. The delay was due to the nationwide shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons why there was a delay allocating an EP, the delay was fault and caused Mr and Mrs X frustration.
39. The Council has a Special Educational Needs and Disability (SEND) improvement plan in place, which aims to reduce EHC assessment delays. To do this, in November 2025, the Council increased funding to its SEND service to allow it to employ more staff and enter into contracts with external providers. I am satisfied the Council has taken appropriate action to prevent similar fault in future, so I have not made a further recommendation.
40. W’s EHC assessment remains outstanding, but this was not due to Council fault. Mr and Mrs X are clear they do not want the EP assessment until they have had a planning meeting with the Council first. While the Code says councils should consult parents throughout the assessment process, it does not include a specific requirement for a planning meeting. The Council has not agreed to a meeting, but it has nonetheless consulted Mr and Mrs X by seeking their views and offering to discuss next steps. It was not at fault.
41. Mr and Mrs X want the EP to have seen documentation the Council has gathered about W before carrying out their assessment. However, the Council has confirmed the EP does not need that information and is only waiting for Mr and Mrs X to suggest a suitable date and time for them to assess W in school. The EP confirmed they were ready to go ahead with the assessment themselves in mid-December. Mr and Mrs X have not consented to the assessment in school but that is their decision, it was not due to Council fault. Ultimately, if Mr and Mrs X consent to the EP assessment and share their views on W’s needs, the Council will be able to complete the EHC assessment. If Mr and Mrs X are unhappy with the outcome of the assessment, they will be able to appeal to the SEND Tribunal to challenge the Council’s decision.

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Action

42. Within one month of the date of my final decision, the Council will pay Mr and Mrs X £100 total to recognise the frustration they experienced because of the delay allocating an Educational Psychologist.
43. The Council will provide us with evidence it has complied with the above action.

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Decision

44. I find fault causing injustice. The Council has agreed to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman