Summary: The Council was at fault in delaying assessing child Y’s need for an Education, Health and Care (EHC) Plan. It was also at fault in delaying issuing an EHC Plan for Y following mediation. The Council’s faults caused Y’s mother, Mrs X, uncertainty, and delayed her appeal rights. The Council has agreed to apologise and make Mrs X a payment to remedy the injustice caused by its faults. The Council was not at fault for failing to deliver direct payments for Y’s agreed social care support.

The complaint

1. Mrs X complained the Council:
1. Refused to issue an Education, Health and Care (EHC) Plan for Y, and made that decision based on the incomplete evidence it had obtained during the EHC Plan needs assessment;
2. Following mediation and re-assessment, delayed in deciding to issue an EHC Plan and in finalising that Plan; and
3. Failed to deliver direct payments for Y’s agreed social care support.
2. Mrs X says the Council’s faults and delays caused the family distress and a lack of support, and caused Y missed educational, therapeutic and social care provision.

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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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome or there is no worthwhile outcome achievable by our investigation. 
5. 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)
6. 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

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. I discussed Mrs X’s complaint with her on the telephone.
8. 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 have and have not investigated

Decision not to issue an EHC Plan

9. 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.
10. 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)
11. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. There is a right of appeal to the Tribunal against a council’s decision that it is not necessary to issue an EHC Plan following a needs assessment.
12. Mrs X complained that the Council refused to issue an EHC Plan for Y, and that it did so because it had not obtained relevant professional reports during the EHC Plan needs assessment. The Council later agreed to issue an EHC Plan for Y. Mrs X said the Council’s initially flawed decision to refuse to issue an EHC Plan for Y meant that they received their final EHC Plan later than they should have.
13. Mrs X had a right to appeal the Council’s decision to refuse to issue an EHC Plan for Y. It was reasonable that she did not do so because she resolved her complaint by attending a mediation meeting at which the Council agreed to carry out a further assessment of Y’s special educational needs. The Council then issued a draft EHC Plan for Y.
14. Only the Council or the Tribunal can decide whether or not the Council should issue an EHC Plan. As the Ombudsman does not have the power to make such a decision, or direct a Council to do so, there would be no worthwhile outcome achievable by an Ombudsman investigation of this matter. And, as the Council overturned its own decision not to issue an EHC Plan following mediation, further investigation by the Ombudsman would not lead to a different outcome. And so, I have not investigated this aspect of Mrs X’s complaint.

Late complaints

15. 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)
16. Mrs X complained to us about matters that occurred from November 2023 onwards but did not approach the Ombudsman until September 2025. Matters that occurred before September 2024 are late. I decided to investigate as far back as June 2024, when the Council issued its decision to assess Y for an EHC Plan. I have not investigated matters that occurred before that as they are late and I have not seen good reasons why Mrs X could not have complained to us sooner.

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What I found

Law, policy and guidance

Timescales and process for EHC assessment 

17. 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 if the council carries out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 10 weeks of the date it agreed to carry out that assessment.

Advice and Information for EHC needs assessments

18. 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 (EP); 
• Social care advice and information; 
• Advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• Any other advice and information the council considers appropriate for a satisfactory assessment. 
19. Those consulted have a maximum of six weeks to provide the advice. 
20. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

Deciding whether to issue an EHC Plan

21. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision to the Tribunal.

Mediation

22. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal. Parents need to consider mediation and get a ‘mediation certificate’ before they can appeal to the Tribunal. They do not have to agree to attend mediation.

Actions following mediation

23. The Special Educational Needs and Disability (SEND) Regulations 2014 set out the timescales councils must follow if they are directed to act by the Tribunal following an appeal. If, during mediation, the council agrees to overturn decisions which could have been appealed to the Tribunal, then the council must comply with the timescales as if they had been ordered by the Tribunal. The timescales apply from the date of the mediation agreement and include that a council must complete an assessment or reassessment and issue a final EHC Plan within 14 weeks.

Direct Payments for children’s social care

Parents/carers of disabled children can ask for direct payments (DPs) to meet the social care needs of the child. The council must carry out an assessment and DPs must be sufficient to meet the child’s assessed needs. DPs must be used by the parent/carer to meet the child’s needs as determined by the council. They do not affect any benefit entitlement. Persons receiving DPs must sign a DP agreement and keep and submit accounts.

Parent Carers

25. The Children Act 1989 (Schedule 2 paragraph 96)(1)(c)) and Breaks for Carers of Disabled Children Regulations 2011 requires councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. These services must include a range of daytime care, overnight care and leisure activities. This range of services must be set out in a ‘short breaks statement’ and include details of any eligibility criteria.
26. The Children Act 1989 (as amended by the Children and Families Act 2014) places specific duties on councils to assess the needs of carers with parental responsibility for disabled children as well as young carers. Councils have an obligation to assess parent carers on the ‘appearance of need’ (Children Act 1989, section 17ZD/E), or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.

What happened

27. This section sets out the key events in this case and is not intended to be a detailed chronology. I have not investigated events before June 2024, that are included for context only.

2023

28. Y has both special educational needs and physical disabilities. In September 2023, the Council carried out an assessment of Y’s social care needs as a disabled child. In November, it approved a package including 10 days per year at a local short breaks provider, three family fun days per year, and DPs for four hours of support per week.
29. In December, the Council sent Mrs X information about DPs. The Council asked her to return the requested information so it could create a legal agreement covering the use of the DPs.

2024

30. In March 2024, Mrs X asked the Council to carry out an EHC needs assessment for Y. The Council agreed this request on 12 June.
31. The Council took advice from Y’s school, an Educational Psychologist, and the Emotional Wellbeing and Mental Health Service. In mid-September, the Council told Mrs X that it would not be able to take SALT and OT advice to inform the assessment as Y was “not known to the relevant services”. The Council asked Y’s school to make referrals to these services.
32. In early October 2024, Mrs X contacted the Council to let them know she had set up separate bank accounts for Y and their sibling to receive DPs from the Council.
33. The Council created the legal agreement for the DPs. It posted this to Mrs X for signature in early November.
34. On 25 October, the Council decided it would not issue an EHC Plan for Y. It informed Mrs X of her right to appeal this decision to the Tribunal, and the need to consider mediation and obtain a mediation certificate before appealing.
35. Mrs X requested mediation in mid-November.
36. The SALT service sent its advice to the Council in mid-December.

2025

37. Y moved schools in January 2025. Mediation took place in early February 2025. At the mediation, the Council agreed to follow up on the referral to OT and to ask the NHS to provide statutory advice about Y’s physical health conditions (that is, to carry out a new assessment).
38. In early April 2025, Mrs X emailed the Council to say she had not received the legal agreement for signature. In early May, the Council contacted her to check whether, given that the documentation had not been returned in the preceding 18 months, the DPs were still needed. Mrs X reiterated that she had not received the legal agreement for signature. In mid-May, the Council sent it again, this time via email as well as posting it.
39. Mrs X and her family moved to a different council area on 9 June.
40. On 24 June, the Council informed Mrs X that it had agreed to issue an EHC Plan for Y but would not now do so as the responsibility would transfer to her new council. It issued a draft Plan and asked the new council to adopt this. The draft Plan included classroom-based support and six hours per year of direct OT provision.
41. Mrs X complained to the Council in early July that:
• The summer 2024 assessment process had been inadequate;
• The Council had refused to issue a Plan because of a “lack of evidence” – but this was because the Council had failed to collect the relevant evidence. She said the Council had admitted to this failing at mediation; and
• Following mediation, the Council had delayed further before agreeing to issue a Plan for Y – by which time the family had moved away.
42. Mrs X also complained the Council had failed to deliver direct payments for Y’s agreed social care support, meaning Y had not been able to access that provision before moving in June 2025. She said the Council had:
• Told her to open separate bank accounts for Y and their sibling, then told her the accounts weren’t acceptable because they were linked to her personal account or did not have a zero balance;
• Required her to provide written confirmation that all staff members of the provisions Mrs X had identified had completed an enhanced Disclosure and Barring Service (DBS) check; and
• Given her conflicting information: the DP team said it had everything it needed, but the Payments team said they would send paper forms, which did not arrive.
43. The Council responded at stage one of its complaints procedure in early August. It acknowledged it had delayed in assessing Y’s special educational needs and apologised for the distress it had caused. The Council said that it had recruited additional permanent staff which would enable it to improve its services.
44. The Council said it had provided information and guidance, both verbally and in writing, which explained the paperwork it required to set up a DP. This information included the need to provide details of a separate bank account for each child, to be used for the sole purpose of direct payments. The Council said it had also explained that all care support workers who work with children must go through an enhanced DBS check to ensure safer recruitment, and parents must send confirmation of this to the Council before it could approve DPs.
45. Mrs X approached the Ombudsman in mid-September. We advised her to complete the Council’s complaints procedure before coming to us. Mrs X complained further to the Council in early October.
46. The Council responded to Mrs X in early November. It said that it would not provide a stage two response as it was satisfied that it had fully addressed the issues she had raised in its stage one response.

My findings

Delay in assessing Y’s needs and deciding whether to issue an EHC Plan

47. The Council had a duty to decide whether or not to issue an EHC Plan for Y within 10 weeks of the date it agreed to assess their special educational needs. As the Council agreed to assess Y on 12 June 2024, it should have decided whether or not to issue a Plan by 21 August 2024. The Council did not issue a decision until 25 October 204. This was a delay of two months and was fault. The delay caused Mrs X uncertainty and delayed her right to appeal the Council’s decision to the Tribunal.

Delay following mediation

48. The mediation agreement of 6 February 2025 said that the Council agreed to take an action which the Tribunal could have ordered (that was, to carry out a further EHC needs assessment). And so, the Council had a duty to issue a final EHC plan for Y within 14 weeks of the date of the mediation agreement, that is, by 15 May 2025. To issue a final Plan by this date, the Council would have needed to issue a draft Plan four weeks earlier, in mid-April. It did not issue a draft plan until late June, by which time Mrs X and her family had moved to a different council area (and so the Council could not issue a final Plan for Y). This was a delay of more than two months and was fault. The fault caused Mrs X uncertainty and delayed her right to appeal the Plan to the Tribunal.
49. The Council’s fault also caused Y the loss of the special educational and therapeutic provision set out in their Plan between 15 May, when a final Plan should have been issued, and 9 June, when the family moved to a different council area (a period of three weeks). As Y was in education throughout this period, and as this period includes May half term, I do not consider that the injustice caused by the Council’s fault merits a remedy beyond an apology.

Failure to deliver direct payments for social care support

50. The Council was not at fault in requiring all care support workers who work with children to go through an enhanced DBS check. The Council provided information about that requirement to Mrs X when it first approved DPs and so was also not at fault in communicating with her.
51. The Council was not at fault in requiring Mrs X to create separate, empty, bank accounts purely for the purpose of receiving direct payments for each of her children with assessed social care needs. The Council has a responsibility to ensure that its funding is spent responsibly and for their specified purpose, which the empty bank accounts are required for.
52. I have seen no evidence Mrs X provided confirmation of these accounts to the Council before October 2024. And so, the Council was not at fault in that it did not send her the legal agreement for signature until November 2024.
53. When Mrs X did not receive the legal agreement through the post, I have seen no evidence that she chased the matter up with the Council until early April 2025. The Council was not at fault in taking no action in the meantime. And, given the passage of time, the Council was not at fault for checking if Y still needed DPs before sending the legal agreement to Mrs X again in May 2025.

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Action

54. Within one month of my final decision, the Council has agreed to:
1. Apologise to Mrs X and Y for the injustice caused by the faults I have identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology; and
2. Make Mrs X a payment of £200 in recognition of the uncertainty and delayed appeal rights caused by the Council’s delay in:
1. Progressing Y’s initial EHC needs assessment and deciding whether to issue a Plan for them; and
2. Issuing an EHC Plan for Y following mediation.
55. The Council should provide us with evidence it has complied with the above actions.

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Decision

56. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman