Summary: The complainant complains the Council delayed completing the reassessment of her daughter's Education, Health and Care Plan. And it refused to refund the costs of an educational psychologist’s report she had commissioned and sent its own psychologist to her daughter’s school without telling her. We uphold the complaint due to the delay and some poor communication about the educational psychologist. The Council has agreed to our recommendations.

The complaint

1. The complainant (Miss F) complains that:
• the Council agreed to reassess her daughter’s (X) Education, Health and Care (EHC) Plan in December 2023, but delayed completing the assessment when compared to the statutory deadlines;
• in April 2024, she sourced an educational psychologist herself, as the Council had advised a lack of educational psychologists was the main cause of the delay. The Council was aware of this, but in May sent its own educational psychologist to assess X without speaking to her first, or liaising about the possible duplication of educational psychologist assessments;
• she knows of two families where the Council has completed educational psychologist assessments within the legal timeframe, seeming to show that, contrary to what the Council says, it does not always do the assessments in date order.
2. Miss F complains about the delay and the avoidable costs of the assessments she commissioned.

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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. 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(i), as amended)
5. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss F;
• made enquiries of the Council and considered its response;
• spoken to Miss F;
• sent my draft decision to Miss F and the Council and considered their responses.

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What I found

Legal and administrative background

EHC Plan

7. 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. 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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. Only it (or the council) can make changes to these sections.

Reviewing EHC Plans

8. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place.
9. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. If the Council decides to amend a Plan, it must issue the final plan within eight weeks of the amendments notice. A decision to amend a Plan after an appeal has the same time limit. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and The Special Educational Needs and Disability Code of Practice: 0 to 25 years (The Code) paragraph 9.176)

Educational psychologist assessments

10. If, as part of an assessment, a council determines a child needs an assessment by an educational psychologist, The Code says it will usually be a council’s own psychologist that completes the assessment.
11. Some parents obtain their own educational psychologist reports. Sometimes councils will accept the recommendations in these private reports if they meet the standards required of the law and SEN Code. Others have refused. The Ombudsman see this as a decision a council is entitled to take, if it takes relevant information into account, as it is the body which will ultimately decide what should be in the EHC Plan.
12. The Council says its own policy is that if there is a pre-existing or privately-commissioned educational psychologist report, a manager in its Educational Psychology Service would review it. If that manager considered it suitable, a senior Council SEND Service manager would then consider it and make the final decision about whether to use it as the statutory psychological advice needed within an EHC needs assessment.

What happened

13. The information below is a summary of relevant events, and does not include every everything that happened during this period.
14. X is a primary school age child with special educational needs (SEN). She has had an EHC Plan from before she started school.
15. In August 2023, Miss F’s advocate asked for a reassessment of X’s EHC Plan. The Council made its decision to not reassess in October. Miss F appealed on the basis parts of the Plan did not reflect X’s needs. The Council conceded the appeal on 10 December 2023 and agreed to reassess.
16. In early 2024 Miss F asked the Council’s EHC Co-ordinator if she could arrange private assessments which the Council would fund, as a way of overcoming the backlog of EHC needs assessments requiring educational psychologist, speech and language and occupational therapist assessments. The Council officer’s response advised the Council was not able to fund private assessments, as it had its own commissioning arrangements in place – with its own educational psychologists and NHS occupational therapists.
17. The EHC needs assessment should have been completed by 15 March 2024.
18. Miss F complained about the delay. One of her complaints was that she could not understand why the Council would not agree to fund private educational psychologist assessments. The Council’s responses advised it would be unfair to allocate educational psychologist assessments out of turn. But it did offer Miss F a symbolic payment of £150 for its delay. Miss F advises she did not accept this payment.
19. On 30 April the Council emailed and spoke to Miss F. It told her the NHS had advised that the type of assessment X needed was not within its commissioning agreement with the Council. The Council apologised to Miss F for the confusion caused by its earlier advice. The Council agreed to make referrals for occupational and speech and language assessments. Miss F advised that she had already commissioned an occupational therapy assessment.
20. The Council says it assigned an educational therapist the same day. It has no record it advised Miss F it had done this.
21. Also on 30 April Miss F obtained a quote for a private educational psychologist assessment. She subsequently commissioned an educational psychologist assessment.
22. On 13 May the Council contacted Miss F to advise that it had received a quote for a speech and language therapy assessment. The Council agreed to fund this assessment shortly after.
23. On 14 May the Council’s educational psychologist visited X’s school. The Council did not inform Miss F of this visit.
24. Miss F complained to the Ombudsman on 16 May.

25. On 6 June:
• the Council agreed to use the occupational therapy report Miss F had commissioned; and
• the Council’s educational psychologist produced their report.
26. The Council issued X’s final EHC Plan on 10 July.
27. Miss F complained to the Ombudsman. In response to my enquiries the Council advised:
• in some circumstances it would consider using an already produced private educational psychologist assessment;
• in Miss F’s case it had already assigned a psychologist before the private psychologist produced their report. Its view was, in such circumstances, it would be an inefficient use of public resources to use a private assessment as it would cost more. And its own psychologist would still need to scrutinise a private assessment to assess its suitability;
• it had not advised Miss F that it had assigned X’s case to an educational psychologist;
• it was normal protocol for its educational psychologists to contact parents before visiting children and carrying out assessments. But that had not happened before X’s assessment.

Analysis

Delay

28. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
29. The Council should have produced its final EHC Plan by 15 March 2024. The final EHC Plan was not available until 10 July, a total delay of just over four months. That delay was fault and the offer the Council made in its complaint response (see paragraph 18) is not a sufficient remedy for the injustice to Miss F and X.

The private assessments

30. Early in 2024, the Council had told Miss F it did would not pay for private assessments due to its own commissioning arrangements.
31. The Council usually commissions occupational therapy assessments from the NHS. But in X’s case the NHS could not provide the report. That caused a delay, which led to the Council using an occupational therapy report Miss F had commissioned. As the Council used this report, it should refund Miss F its cost.
32. In contrast, with the educational psychologist report, the Council did not use the one Miss F commissioned. It has explained why in this instance it decided not to use that report.
33. Our role is not to ask whether we agree or disagree with a decision an organisation makes. Instead, we look at whether there was fault in how it made its decisions. My decision is the Council was entitled to take the decision it did about the educational psychologist assessment. Its explanation of its procedure explains why sometimes it might accept a privately commissioned educational psychologist assessment, but also why it did not with the report Miss F had commissioned. So I see no fault in the decision.
34. But I do fault that the Council did not inform Miss F in April that it had appointed one of its educational psychologists to assess X and produce a report. It missed another opportunity to alert Miss F when the educational psychologist visited X’s school to carry out the assessment. So, while I cannot recommend the Council refunds the full cost of the educational psychologist report, I do find an injustice to Miss F in the frustration and uncertainty the lack of communications caused. That injustice demands its own remedy by way of a symbolic payment.

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Agreed action

35. Within one month of my final decision, the Council has agreed to take the following action:
• contact Miss F for any information it needs to it can reimburse her for the cost of the occupational therapy report;
• for the delay in issuing X’s EHC Plan, make Miss F a symbolic payment of £400;
• for the distress caused by the poor communications about the educational psychologist assessment, refund Miss F half the cost of the educational psychologist report she commissioned. It should contact Miss F within a month for any further information it needs about these costs;
• provide Miss F with a letter apologising for the faults I have identified. Our guidance on remedies sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman