The Ombudsman's final decision
Summary: Miss F complained about the Council’s handling of her child’s Education, Health and Care Plan. We found there was a delay issuing the final plan which caused distress, delayed appeal rights and a loss of SEND provision for two months. The Council has agreed to reimburse Miss F for the cost of private OT assessments she obtained and make other payments to remedy the injustice.
The complaint
Miss F complained about the Council’s handling of her child’s Education, Health and Care Plan. In particular she complained the Council: Refused to assess her child’s EHC needs.
Wrongly asked her to pay for an Occupational Therapy assessment.
Delayed issuing a final EHC plan.
Failed to name the parental preference setting in the final EHC plan.
Wrongly told them that the Council had no duty to secure SEN provision or education for her child as she was under five years old.
Miss F says as a result, they were caused significant distress affecting their mental health, were forced to appeal to Tribunal and had to pay about £20,000 for educational provision, professional reports and advice. She wants the Council to reimburse them for these costs.
The Ombudsman’s role and powers
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) 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) 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.
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) 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.
We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended) 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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated I have not investigated parts a) and d) of the complaint. This is because these are matters for the Tribunal. As set out in paragraphs 8 and 9, we cannot investigate if someone has or could appeal to the Tribunal about the matter.
I have investigated the period March 2024 to January 2025. This is because the complaint is not late as Miss F came to us in August 2024 but we could not investigate then as she had not yet made a complaint to the Council. I have not investigated SEND provision after the EHC plan was issued on 28 January 2025. This is because, as set out in paragraph 9, it is out of our jurisdiction as Miss F had a right to appeal to the Tribunal.
How I considered this complaint
I spoke to Miss F about her complaint and considered the information she sent, the Council’s response to my enquiries and: The Special Educational Needs and Disability Code of Practice ("the Code") The Special Educational Needs and Disability Regulations 2014 (“the Regulations”) Miss F and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
Relevant law and guidance Special educational needs 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.
Parents have a right of appeal to the Tribunal if they disagree with a decision not to assess, the SEND provision, the school named in their child's plan, or the fact that no school or other provider is named.
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.
EHC needs assessments 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.
The Code says the process of assessing needs and developing EHC plans “must be carried out in a timely manner”. Councils must give the child’s parent 15 days to comment on a draft EHC plan and express a preference for an educational placement. They must also consult with the proposed educational setting which should respond within 15 calendar days.
In order to complete an EHC needs assessment the Council must seek advice from the child's parents, the educational setting, 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. (SEND Regulations 2014, regulation 6(1)) 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.
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. Those consulted have a maximum of six weeks to provide the advice.
Mediation 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.
The Regulations say, if a council agrees at mediation to carry out an EHC needs assessment, any final EHC plan must be issued within 14 weeks of the mediation agreement. (SEND Regulations 2014, regulations 42, 44(b)) Naming a school in an EHC plan The child’s parent has the right to request a particular school to be named in the EHC plan. That includes maintained nursery schools and independent schools (where they have been approved for this purpose by the Secretary of State and published in a list available to all parents and young people).
If a child’s parent or a young person makes a request for a particular nursery, the local authority must comply with that preference and name the school in the EHC plan unless: it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources The child’s parent or the young person may also request a place at independent schools that are not on the list mentioned above. The council must consider their request but is not under the same conditional duty to name the provider. The council needs to be satisfied that the institution would admit the child or young person before naming it in a plan since these providers are not subject to the duty to admit a child or young person even if named in their plan.
The Ombudsman’s jurisdiction in relation to SEND Further to paragraphs 8 and 9, the courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) What happened I have summarised the events. This is not meant to detail everything that happened.
Miss F’s daughter, J, has autism and developmental delay. She was attending a nursery (“the Nursery”), funded by Miss F. In December 2023, a request was made to the Council to assess J’s EHC needs. The Council refused. Miss F went to mediation.
On 7 March 2024, at mediation the Council agreed to carry out the assessment. The final EHC plan should therefore have been issued within 14 weeks, i.e. by 13 June 2024.
The mediation agreement says Miss F would provide the Council with a NHS SALT report, a report from the Nursery, a health visitor report, “and any other reports such as multi-disciplinary assessment or specialist health visitor”. The agreement does not say Miss F needed to pay for these.
The Council started the EHC needs assessment. I have not seen any evidence of its request for EP advice or of any consideration whether an OT assessment or advice was necessary. Nor have I seen evidence the Council refused to commission an OT assessment.
An independent OT (“OT1”) started assessing J on 12 March. OT1’s assessment was sent to the Council on 3 April. Miss F paid £638.75 for this.
Miss F says OT1 recommended weekly OT sessions. These started in July, carried out by a specialist OT (“OT2”). Miss F funded these sessions at £70 per weekly session.
In August, Miss F came to the Ombudsman. She said the Council had delayed issuing J’s EHC plan and was not funding J’s therapies or assessments. We could not investigate as Miss F had not made a formal complaint to the Council.
The Council received the EP report on 19 September. At this point a draft EHCP should have been drawn up and sent to Miss F and any education setting for comments. Therefore a final EHC plan should have been issued by November.
A draft EHC plan was issued on 7 November. The Council emailed Miss F on 8 November saying that due to J being preschool age there was no statutory duty for the local authority to provide a personal budget and the Council would not yet consult schools.
The Council consulted two specialist nurseries. Miss F says the Council refused to consult the Nursery as J was not at compulsory school age and therefore it was “parental choice”. I have not seen the evidence of that refusal nor of a consultation with the Nursery. Miss F’s legal letter to the Council in February 2025 says the Council did then consult the Nursery but had decided J’s attendance would be incompatible with the efficient use of resources.
OT2 assessed J and sent her report to the Council as part of the EHC needs assessment. She charged Miss F £70 for this.
Miss F says the Council told her there was no suitable provision for J. I have not seen evidence of that but the two settings consulted by the Council responded on 8 January 2025 that they were unable to meet J’s needs.
The Council issued the final EHC plan on 28 January. It said J required an early years setting but no specific placement was named. The provision in the plan included 20 weekly one‑hour OT sessions, daily sensory provision, specialist review, and two 45‑minute SALT sessions per term. The OT was to be funded by a personal budget.
Miss F appealed to the Tribunal. She complained to the Council in July 2025.
The Council’s complaint response in September 2025 apologised for the delay in issuing the final EHC plan and offered Miss F £750 to remedy the distress that caused. It apologised for any confusion about the advice it had given her. Miss F came to the Ombudsman.
My findings
Miss F complained the Council wrongly asked her to pay for an OT assessment. The Council is entitled to decide that an OT assessment is not a necessary part of an EHC needs assessment. In those circumstances a parent may decide to fund one privately. But I have seen no evidence the Council considered whether an OT assessment was necessary nor that it told Miss F it would not seek OT advice. Nor have I seen evidence it asked Miss F to fund an independent OT assessment.
Nonetheless, assessments were done by OT1 and OT2, paid for by Miss F, and their recommendations informed the final EHC plan. Our view is that if a council uses a complainant’s OT report in the EHC plan, instead of obtaining its own, it should reimburse the cost. The Council has not done this, which is fault causing Miss F financial loss.
The Council has accepted the final EHC plan was delayed. Following the mediation agreement, the Council had to progress the assessment so it could issue J’s final EHC plan within 14 weeks, i.e. by 13 June 2024, but it was not issued until 28 January 2025, a delay of 7 months.
Most of this was caused by a delay obtaining an EP report due to the national shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there were reasons out of the Council’s control why the EP advice took longer than it should have, J’s EHC plan was nonetheless delayed, which is service failure.
Once the EP report was received on 19 September, my view is the Council should have promptly issued a draft EHC plan and a final plan by November 2024. I therefore find that the delay from June to November was caused by the delay in obtaining EP advice.
This delayed Miss F’s right to appeal and caused her F distress and uncertainty about what education and SEND provision could have been made in June 2024, which is an injustice.
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 or uncertainty caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
Our approach is to remedy uncertainty and distress caused by EP delay by recommending a symbolic payment of £100 per month from the date the final EHC Plan should have been issued to the date it could have been issued if not for further delay. In this case that is from June to November 2024 (5 months).
I recognise Miss F says J has missed out on specialist provision from June 2024. But I cannot say on balance of probabilities that the EHC needs assessment would have reached the same conclusions had the EP advice been received in April 2024 rather than September 2024. This is because the assessment takes account of the latest evidence relating to the child's circumstances. If the child's needs have been disadvantaged by any delay in obtaining the EP advice, we would expect the EHC plan provision to reflect this. If it does not then the plan is appealable. As I cannot speculate what education or SEND provision J may have had from June but for the EP delay, I cannot recommend a remedy for lost education or SEND provision from June to November 2024.
The final plan was not issued until 28 January 2025. I find this further delay to be caused by fault by the Council and that J’s SEND provision could have been in place from November 2024. I therefore find the delay caused J to miss out on the provision set out in section F of the January 2025 EHC plan for two months. As Miss F funded J’s provision, the Council should reimburse the cost of OT2 from November 2024 to the end of January 2025 (10 weeks as one week was for OT2’s assessment).
I cannot recommend the Council refund the cost of the Nursery for this period as it did not name the Nursery in the final EHC plan. It was Miss F’s choice to send J there and there is no duty on the Council to fund it.
Miss F says the Council was wrong to refuse to name the Nursery in the January 2025 EHC plan. It is not for us to take a view on which setting was suitable for J. This is for the Tribunal and Miss F has exercised her right to appeal. This puts it out of our jurisdiction, as set out in paragraph 8. We cannot remedy loss of education or SEND provision when it relates to a disagreement about an EHC plan that is being appealed. So I cannot recommend any remedy for the period after 28 January 2025.
I have not made service improvement recommendations. This is because the Council has an ongoing SEND strategy which includes addressing delays in EHC needs assessments and improving the timeliness of EHC plan processes. We will continue to monitor this through our casework and will make further service improvement recommendations where appropriate.
Miss F complained the Council wrongly told her it had no duty to secure SEN provision or education for her child as she was under five years old. I have not seen evidence of that but the Council’s email of 8 November says the Council did not have a duty to secure a personal budget for J because she was not at compulsory school age. I find this is unclear. Whilst a parent does not have an automatic right to a personal budget, the Code and related regulations require councils to provide information about personal budgets and to consider any request for one, including when the child is under five.
The email went on to say the Council would not consult with schools as J was too young. I find this is also unclear. The Council had to consult potential early years placements before deciding which setting to name in J's EHC plan, as the Code includes maintained nursery schools.
I therefore find there was fault in this email which caused Miss F frustration and confusion about her rights.
Action
Within a month of my final decision, the Council has agreed to apologise to Miss F and pay her a total of £2,008.75. This consists of: £708.75 for OT1’s and OT2’s assessments.
£500 to remedy delayed appeal rights and uncertainty caused by the EHC plan delay caused by EP delay.
£700 to reimburse 10 weeks of OT provision from November to January 2025.
£100 to remedy distress caused by unclear advice on 8 November 2025.
The Council should provide us with evidence it has complied with the above actions.
Decision There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman