Summary: Miss F complained about the Council’s decisions not to assess her son’s education, health and care needs and not to issue an education, health and care plan and that it wrongly asked her to submit a new request for an assessment. We found it was fault for the Council to ask Miss F to request a new needs assessment. This caused distress and frustration, a delay in issuing the education, health and care plan, and a loss of education. The Council has agreed to make a symbolic payment to remedy this.

The complaint

1. Miss F complained:
1. The Council’s decisions in 2024 not to assess her son’s education, health and care (EHC) needs and not to issue an education, health and care plan were flawed due to inadequate information.
2. The Council wrongly asked her to submit a new request for an education, health and care needs assessment in February 2025.
2. As a result, the needs assessment and final education, health and care plan were delayed, causing Miss F to have to fund her son’s education for longer than necessary. It also caused her and her son significant uncertainty, distress and anxiety and led to a delay in him receiving support for his special educational needs, adversely affecting his education.

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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 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)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended).
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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.
8. 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)
9. 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)
10. 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

11. Miss F had a right to appeal to the Tribunal about the decisions not to carry out an EHC needs assessment and not to issue an EHC plan for her son.
12. My view is that it was not reasonable for Miss F to appeal to the Tribunal about the decision not to assess, because a week after it issued that decision the Council agreed to assess.
13. My view is that it was not reasonable for Miss F to appeal to the Tribunal about the decision not to issue an EHC plan because two weeks after making that decision, the Council agreed to carry out a new educational psychology assessment and advised her it would ask its panel to reconsider the decision.
14. In line with paragraph 8, I am therefore exercising discretion to investigate part (a) of the complaint.

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How I considered this complaint

15. I spoke to Miss F about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Children and Families Act 2014
• The Special Educational Needs and Disability Regulations 2014 (“the SEND Regulations”)
• The Special Educational Needs and Disability Code of Practice ("the Code")
16. Miss F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Special educational needs

17. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
18. Parents have a right of appeal to the Tribunal about various decisions. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process. We cannot direct changes to the sections about needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.

EHC needs assessment

19. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. Councils must decide whether to carry out an EHC needs assessment and notify the parent of their decision within six weeks of a request. Parents can challenge a refusal to assess by appealing to the Tribunal.
20. If the Council agrees to carry out the assessment, it must be carried out in a timely manner and completed as soon as practicable. In order to complete an EHC needs assessment the Council must seek advice from the child's parents, the school, an identified health care professional, an educational psychologist (EP), social care, anyone else the Council considers appropriate and from any person the child's parent reasonably requests. Those consulted have a maximum of six weeks to provide the advice.
21. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current. (The Code paragraph 9.47)
22. Following completion of an EHC needs assessment, if the Council decides an EHC plan is not necessary, within 16 weeks of the initial request it must notify the child's parents or the young person of its decision and of their right to appeal that decision.
23. Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made in accordance with an EHC plan, the local authority must prepare a plan. (Section 37, Children and Families Act 2014)
24. If the council decides it is necessary to issue an EHC plan, it must notify the child’s parent or the young person and give the reasons for its decision. The council should ensure it allows enough time to prepare the draft plan and complete the remaining steps in the process within the 20-week overall time limit within which it must issue the finalised EHC plan. (The Code paragraph 9.53)

What happened

25. Miss F’s son, B, was electively home educated using online tuition funded by Miss F. He started secondary education in September 2023. Miss F asked the Council to carry out an EHC needs assessment on 11 March 2024.
26. The Council decided not to carry out an assessment on 11 April. At this point, Miss F had a right to appeal to the Tribunal. She told me she did not because the Council said it would assess B. I have not seen evidence of that conversation but on 18 April the Council requested advice from the educational psychologist (EP). The letter says the Council had agreed to carry out an assessment of B's needs with a view to considering whether an EHC plan was required.
27. The EP sent her report to the Council on 14 June. On 26 June, the Council issued a decision that it would not prepare an EHC plan for B.
28. Miss F had the right to appeal to the Tribunal about this decision by 26 August. Miss F was unhappy with the EP report. She told me it was inadequate, inaccurate and reflected B’s sibling’s needs, rather than B’s. Miss F contacted the EP service at the Council. On 12 July she met the EP manager, he agreed to re-assess B. This would take some time due to the school holidays. Miss F therefore did not appeal to the Tribunal.
29. On 16 July, a SEND officer emailed Miss F saying she would ask the Council’s panel to reconsider the decision whether to issue an EHC plan. Miss F asked for that to be done after the Council had received the new EP assessment.
30. At a meeting on 12 December, the Council told Miss F that once it had the new EP report it would go back to panel to reconsider the decision on whether to issue an EHC plan. In a later discussion, the Council said it would try to send the EP report to a panel on 7 January.
31. The new EP assessment was submitted to the Council on 19 December. In January 2025, Miss F asked the Council for an update. The Council replied on 17 January that changes to the EP report were being considered. It said, “In the meantime, your right of appeal will have expired, but you are able to reapply for an EHC needs assessment with up-to-date evidence.”
32. The EP re-sent the new assessment to the Council on 30 January because the Council said it had not received it. On 3 February, the Council told Miss F that as she had not exercised her right to appeal the decision not to issue an EHC plan, she would need to make a new request for an EHC needs assessment so that the new EP assessment could be considered.
33. Miss F submitted a new request on 12 February. She made a formal complaint on 21 February.
34. The Council’s reply of 12 March said it would decide by 26 March whether it would carry out an EHC needs assessment. The Council’s panel considered the matter on 18 March and agreed to carry out an assessment.
35. Miss F told me the Council asked for a new EP report, but the EP service refused as one had just been done. Miss F asked for her complaint to be escalated.
36. A draft EHC plan was issued on 19 May.
37. The Council’s final response to Miss F’s complaint was sent on 24 June. It said it would issue a final EHC plan soon.
38. The final EHC plan was issued on 28 July. It said B required education other than at school, of up to 25 hours per week of online tuition by a qualified teacher.

My findings

39. I note that the Council changed its 11 April 2024 decision not to assess B’s EHC needs within a week, but I have not seen evidence of fault in the way its first decision was made, nor evidence of why the Council changed its mind. But even if there had been fault in the 11 April decision, this did not cause any injustice to Miss F as by 18 April the Council had made a new decision.
40. I have seen no evidence the Council issued a new letter to Miss F with its new decision, this is fault. But it did not cause injustice as Miss F did not wish to appeal that decision and the assessment started.
41. The Council’s decision not to issue an EHC plan for B was sent on 26 June, after it had received the first EP assessment of 14 June. Miss F could have appealed to the Tribunal about this decision, the Tribunal has a power to order the Council to issue a plan or carry out an EHC needs assessment. Miss F was unhappy with the EP assessment; she said it was inadequate and did not reflect B’s needs. So she met with the EP manager who agreed to re-assess B. She therefore did not appeal.
42. I cannot decide what B’s educational psychology needs are, that is for the educational psychologist who works on behalf of the Council. I cannot find a council at fault just because a complainant disagrees with the outcome of an assessment. My role is to consider if the council has followed the correct process for establishing a person's needs. I have therefore carefully considered whether there was any fault in the way the EP assessed B. I have reviewed the first assessment of June 2024 and the re-assessment of December 2024.
43. The December 2024 assessment is more detailed and based on more assessments. The EP met with Miss F online three times and visited B at home twice to do in person cognitive and literacy assessments. She remotely observed B in a class, a sensory profile was completed and the EP spoke to the occupational therapist. It found B had severe, persistent and complex learning, literacy, communication and anxiety‑related needs requiring specialist provision.
44. In the June 2024 assessment, the EP met once with Miss F and others and met B online once. It found B had moderate needs requiring support.
45. I can see that the second assessment is more detailed. However, the June 2024 assessment was completed by a qualified EP. There is no evidence that the EP failed to meet B, ignored Miss F’s views, acted outside professional competence, was biased or negligent, or that the assessment breached any statutory processes. I do not dispute that it contained inaccuracies and did not fully reflect B’s needs but I do not find there was administrative fault in the way it was carried out.
46. This means I do not find there was fault in the Council’s decision of 26 June not to issue an EHC plan as it was not based on information that was procedurally flawed.
47. However, I find it was fault for the Council to ask Miss F to request a new EHC needs assessment in January 2025. Once the Council had received the new EP assessment in January 2025, it should have reconsidered whether to issue an EHC plan for B and issued a fresh decision.
48. This is because, once an EHC needs assessment has been done, there is nothing in the Children and Families Act 2014, the SEND Regulations 2014 or the Code that says a parent must make a fresh request for assessment before a council can change its mind. In fact, section 37 of the Act says that the Council must prepare an EHC plan if it has evidence that it is necessary for special educational provision to be made. So once it had new evidence from the EP that specialist provision was needed, it had to issue a plan.
49. In addition, the appeal right is meant to challenge the council’s decision that an EHC plan was not needed after an assessment, based on the evidence it gathered. If families had to restart the whole process whenever new evidence appeared, that decision would never be properly challenged and the appeal would become ineffective. My view therefore is that councils must be able to consider new evidence and issue fresh decisions.
50. If the Council had acted without fault, it would have considered the new evidence at a panel in January, determined that special educational needs provision was necessary and should have issued a final EHC plan by the end of March 2025. I say this because during an EHC needs assessment the Council has four weeks to issue a draft EHC plan once it has received the professional advice and a further four weeks to issue the final plan. Instead the plan was issued at the end of July 2025.
51. I must take into account that if Miss F had appealed to the Tribunal about the June 2024 decision, it could have taken much longer for a final plan to be issued, so she benefited from the Council’s agreement to re-assess B’s educational psychology needs. Nonetheless, she was caused frustration and distress by being wrongly asked to submit a new request for an EHC needs assessment.
52. B was also caused an injustice as his SEN provision (education other than at school) should have been in place for the summer term 2024/25.
53. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might.
54. Our guidance on remedies say that a moderate, symbolic payment may be appropriate to remedy distress caused by fault. For loss of education caused by fault, we usually recommend a payment of at least £900 per term.

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Action

55. Within a month of my final decision, the Council has agreed to:
• Pay Miss F £200 to remedy the distress and frustration caused by the fault identified in paragraph 47.
• Pay her £1,000 to remedy the loss of education for summer term 2024/25.
56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman