Summary: Miss X complained the Council delayed completing her child, Y’s Education, Health and Care needs assessment, and decided not to seek Occupational Therapy and Speech and Language Therapy advice. There are parts of Miss X’s complaint that we have not investigated because she has the right of appeal to the Tribunal. We find the Council at fault for the delay. This impacted Y’s education and caused Miss X avoidable distress and uncertainty. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complained the Council has failed to seek advice from Speech and Language Therapy (SALT) and Occupational Therapy (OT) professionals as part of her child, Y’s Education, Health and Care (EHC) needs assessment.
2. Miss X also complained the Council delayed completing Y’s EHC Plan.
3. She says this will mean Y’s needs are not supported in school.
4. She wants the Council to commission SALT and OT assessments as part of the EHC needs assessment.

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The Ombudsman’s role and powers

5. 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)
6. 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.
7. 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)
8. 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)
9. 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

10. In this case, Miss X can appeal to the SEND Tribunal regarding her complaint that the Council failed to seek advice from SALT and OT professionals. She is currently awaiting mediation with the Council. It is reasonable to expect Miss X to appeal if the mediation is unsuccessful. Therefore, I have not investigated this area of her complaint.
11. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started. I have investigated Miss X’s complaint about the delays with the EHC needs assessment process. 

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How I considered this complaint

12. I spoke with Miss X and considered the information she provided.
13. Written enquiries of the Council were made. I considered its response along with relevant law and guidance.
14. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
15. Miss X 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

Timescales and process for EHC needs assessment 

16. 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 the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

Education, Health and Care Plan

17. 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. Only the tribunal or the council can do this. 

What happened

18. In March 2024, Miss X requested an EHC needs assessment for her child, Y.
19. The Council initially decided not to conduct the assessment and informed Miss X of its decision. However, it later reversed this decision following mediation.
20. In May, Miss X complained to the Council about its decision not to seek SALT and OT advice as part of the needs assessment. The Council responded, explaining its reasons and acknowledging delays in obtaining an Educational Psychologist (EP) assessment due to a national shortage of EPs. It also explained the delays would impact its ability to meet statutory timescales for issuing the EHC Plan and outlined steps it was taking to address service delays.
21. In July, Miss X escalated her complaint to stage two. The Council decided not to progress, as it would not find new information and it believed further investigation would not achieve a meaningful outcome.

My findings

22. The Council failed to complete the EHC needs assessment and issue the final EHC Plan within statutory timescales.
23. Y’s EHC Plan should have been issued within 20 weeks of Miss X’s request for assessment in March, so in July.
24. During my investigation, the Council issued the final EHC Plan in November, resulting in a delay of four months. This delay is fault.
25. Miss X says the delay impacted Y’s education as he did not receive necessary support. It has also delayed Miss X’s right of appeal to the SEND Tribunal and caused avoidable distress and uncertainty.
26. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment to acknowledge the impact of that loss. The figure we recommend takes account of the severity of the child’s special educational needs, whether any provision was made, whether this was a key year of education, and any loss or delayed right of appeal to tribunal.
27. For Y, we based the remedy on £450 per term. This is due to my view of Y’s specific needs, school year, attendance, and the education and support provided during the delay.

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Agreed action

28. To remedy the injustice caused by the above faults, within four weeks from the date of our final decisions, the Council has agreed to: 
• apologise to Miss X in line with our Guidance on Making an effective apology; and 
• pay Miss X £100 in recognition of the uncertainty and distress caused to her by the Council’s delay; and
• pay Miss X £450, as a remedy for Y’s benefit, in recognition of the loss of educational support for approximately one term.
29. I have not recommended any action for the Council to take to improve its services. During our investigation, the Council assured the Ombudsman of the actions it is taking to address delays within its SEND team. It has established a dedicated EHC needs assessment team, increased staffing across the service, and plans to recruit additional staff early this year.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have completed my investigation. There was fault by the Council. The Council has agreed to the above action as a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman