Summary: Miss B complained the Council delayed agreeing to reassess her son’s education, health and care plan, delayed seeking advice, delayed issuing a final education, health and care plan, failed to consult the relevant professionals and failed to respond to her correspondence. Based on current evidence the Council delayed confirming it would carry out a reassessment, in seeking advice and issuing a final EHC Plan and failed to respond to some of Miss B’s correspondence. That delayed Miss B’s appeal rights and has left her with distress and uncertainty. An apology and payment to Miss B is satisfactory remedy.

The complaint

1. The complainant, Miss B, complained the Council:
• failed to tell her whether it would carry out a reassessment within the required timescale;
• delayed seeking advice from the relevant professionals and in asking those she had asked to be consulted;
• delayed issuing her sons final education, health and care plan (EHC Plan); and
• ignored some of her emails and correspondence.
2. Miss B says the Council’s actions have caused her significant stress and she is worried her son has missed out on therapies he should have received.

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The Ombudsman’s role and powers

3. 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)
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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(i), 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. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Miss B and the organisation 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

What should have happened

9. 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 Council can do this.

Special educational needs code of practice

10. Paragraph 9.40 says the whole process of EHC needs assessment and EHC Plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC Plan is issued, must take no more than 20 weeks (subject to exemptions).
11. Paragraph 9.52 says advice and information requested by the local authority must be provided within six weeks of the request, and should be provided more quickly wherever possible, to enable a timely process.
12. Paragraph 9.187 says local authorities must conduct a re-assessment of a child or young person’s EHC Plan if a request is made by the child’s parent or the young person, or the governing body, proprietor or principal of the educational institution attended by the child or young person, or the CCG (or NHS England where relevant).
13. Paragraph 9.190 says the local authority must notify the child’s parent or the young person of its decision as to whether or not it will undertake a re-assessment within 15 calendar days of receiving the request to re-assess.
14. Paragraph 9.191 says the process for re-assessment will be the same as the process for a first assessment (once the decision to carry out an assessment has been taken). Re-assessments must follow the same process as for the first EHC needs assessment and drawing up of the EHC Plan, with the same timescales and rights of appeal for the child’s parent or the young person.
15. Paragraph 9.192 says the overall maximum timescale for a re-assessment is 14 weeks from the decision to re-assess to the issuing of the final EHC Plan, subject to exemptions. However, the local authority must aim to complete the process as soon as practicable.

What happened

16. Miss B’s son has a special educational needs and an EHC Plan. At the review for that EHC Plan on 14 December 2023 Miss B asked for a reassessment.
17. A Council officer discussed the reassessment process with Miss B on 19 January 2024. Miss B chased the Council for an update on 11 and 21 March and 19 April. Miss B then put in a complaint on 2 May.
18. On 9 May the Council asked Miss B for details of the professionals she wanted the Council to seek advice from for the reassessment. Miss B provided those details, followed by the names of the professionals involved with her son. Miss B told the Council although she wanted advice from a physiotherapist and dietician those professionals were not currently involved with her son. The Council told Miss B it could only seek advice from those involved with her son. The Council suggested Miss B go to her GP for a referral for a dietician and physiotherapist.
19. The Council wrote to Miss B on 24 May to confirm it had agreed to begin a reassessment. The Council consulted professionals involved with Miss B’s son on the same day.
20. On 5 June the Council responded to Miss B’s letter of 2 May as a complaint. The Council apologised for the delay completing the EHC needs assessment and in issuing a final EHC Plan. The Council also apologised for its lack of communication. The Council offered Miss B £300 to reflect her frustrated right of appeal.
21. On 10 September Miss B asked the Council for an update and asked it to finalise the EHC Plan.
22. The school Miss B’s son attends contacted the Council for an update on 26 November. The Council explained it was still waiting for an educational psychologist to be allocated.
23. On 8 January 2025 the Council issued a final amended EHC Plan. That final EHC Plan has some amendments to sections A, B and F but does not incorporate any of the new reports the Council received in 2024. Nor does it incorporate any updated educational psychology advice as the Council is still waiting for that.

Analysis

24. Miss B says the Council failed to tell her whether it would carry out a reassessment within the required timescale. The SEN code of practice is clear on the timescale for deciding whether to carry out an assessment or reassessment. I refer to that in paragraph 13. Miss B says the Council confirmed on 19 January 2024 it would carry out a reassessment. However, I have not identified any documentation showing the Council agreed to carry out the reassessment until 24 May 2024. That is significantly outside the timescale set out in the code of practice and is fault. I am satisfied that has delayed the overall production of the EHC Plan and delayed the Council seeking advice from those required to contribute to the process.
25. That is concerning because the Council would have known securing an educational psychologist to complete an assessment would take some time. In fact, as of my draft decision, the Council had yet to identify an educational psychologist for this case. That is more than a year after Miss B asked for a reassessment.
26. Miss B is also concerned the Council delayed issuing a final EHC Plan for her son. The Council issued a final EHC Plan on 8 January 2025. That is significantly outside the timescale set by the code of practice, which I refer to in paragraph 15. The Council should have issued the final EHC Plan by the end of April 2024. Failure to do that is fault.
27. It is now clear although the Council has issued a final EHC Plan it has not included the updated advice it obtained during 2024 in the EHC Plan. Nor has the Council yet identified an educational psychologist to complete an updated report. I therefore consider it likely the Council issued a final EHC Plan in January 2025 to enable Miss B to receive her appeal rights. Delay completing the final EHC Plan without the updated educational psychology advice is fault.
28. The Ombudsman will normally recommend a financial remedy of £100 per month for each month delay producing an EHC Plan when that is due to the lack of educational psychologists. As I said earlier, the Council should have produced a final EHC Plan by the end of April 2024. However, it was not issued until 8 January 2025 which is a delay of a little over eight months. Some of that delay was due to the delay in seeking the advice of an educational psychologist.
29. I recommended the Council pay Miss B £100 per month from when the EHC Plan should have been produced, to incorporate the entire delay. That makes a total of £800. That is intended to reflect the frustration and uncertainty Miss B experienced because of the delay and her delayed appeal rights. The Council has agreed to my recommendation.
30. Miss B also says the Council failed to get advice from some professionals she asked it to consult. While I understand Miss B’s concern, I am satisfied this relates to whether the content of the EHC Plan is now suitable for her son. That is a matter Miss B can appeal to tribunal about. Tribunal can direct the Council to carry out further assessments if it considers further assessments are necessary. In those circumstances I consider this part of the complaint outside the Ombudsman’s jurisdiction.
31. In reaching that view I recognise Miss B does not accept the EHC Plan the Council issued in January 2025 is a new EHC Plan. Miss B says the Council reissued the existing EHC Plan. I understand why Miss B would take that view given the EHC Plan does not refer to any of the professional advice received in 2024 and does not include updated advice from the educational psychologist. Nevertheless, the EHC Plan the Council issued in January 2025 had some amendments to sections A, B and F and, importantly, in issuing that EHC Plan the Council activated Miss B’s appeal rights. So, if Miss B does not believe the EHC Plan reflects her son’s needs she can appeal to tribunal.
32. The Council accepts its communications with Miss B have not met the standards it would normally expect. Having considered the documentary evidence I can see many of Miss B’s emails and correspondence went unanswered. There is also no evidence the Council kept Miss B up-to-date with what was happening with either the reassessment or the issue of the EHC Plan. Those communication issues are fault and meant Miss B did not know what was happening which is likely to have caused her significant distress.
33. I therefore recommended in addition to the £800 remedy referred to earlier the Council pay Miss B an extra £300 to reflect her distress. The Council has agreed to my recommendation. I do not recommend any procedural remedies in this case. That is because I am satisfied the Council is already subject to oversight from the Department for Education and has an action plan in place to address the issues within its special educational needs service.

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Action

34. Within one month of my decision the Council should:
• apologise to Miss B for the distress and uncertainty she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Miss B £1,100.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman