Summary: Mr X complained about the Council’s delays during the Education, Health and Care needs assessment process for his son. He also complained the Council’s communication was poor during the process. We find the Council was at fault for its delays during the Education, Health and Care needs assessment process and for its poor communication with Mr X. This caused frustration and distress and meant Mr X’s son lost out on special educational provision. The Council has agreed to our recommendations to apologise to Mr X and his son and make payments to reflect the injustice caused.

The complaint

1. Mr X complained about the Council’s delays during the Education, Health and Care (EHC) needs assessment process for his son (Y). He also complained the Council’s communication was poor during the process.
2. Mr X says the Council’s faults caused distress and upset. He adds the Council’s delays have had an adverse impact on Y’s 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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr 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 assessments

8. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC needs 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. 
• 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).

9. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). Those consulted have a maximum of six weeks to provide the advice. 

What happened

10. This chronology gives an overview of key events in this case and does not detail everything that happened.
11. Y has special educational needs. The Council received a request to complete an EHC needs assessment for Y in May 2023 from the mainstream school (School V) he was on roll at. It sent a letter to Mr X in June and agreed to complete the assessment. It also asked for advice from professionals, including the educational psychologist (EP). It provided a deadline to respond for the beginning of August.
12. The EP provided their report in October.
13. Mr X complained to the Council in January 2024 about its lack of communication and its delays in finalising Y’s EHC Plan. He said Y had not attend School V since October 2022 and its delays were having an adverse impact on his education.
14. Mr X called the Council in February and asked for an update. The Council emailed him after the call and said it would issue Y’s draft EHC Plan. It said it would send the Plan to School V and ask whether it could meet Y’s needs.
15. The Council sent Mr X and School V Y’s draft EHC Plan just over a week later. Mr X responded and asked the Council to make some amendments. He also named a specialist school (School W) he wanted Y to attend. School V also responded and said it could not meet Y’s needs.
16. The Council contacted School V in April and asked for some information about what support it had put in place for Y. This was to help it decide whether Y should be in a mainstream or specialist placement. School V responded in early May with further information.
17. The Council sent a letter to School W in late May and asked whether it could meet Y’s needs.
18. The Council issued Y’s final EHC Plan in mid-June. It named School V as the placement to deliver his provision.
19. School W emailed the Council a few days later and said it was likely it could meet Y’s needs, but it wanted to meet him first.
20. The Council consulted with another specialist school (School X) in late June.
21. Mr X emailed the Council and said he would take Y to visit both School W and School X before they made a decision. He sent an email a few days later and said Y wanted to attend School X. School X also contacted the Council and said it could meet Y’s needs.
22. The Council responded to Mr X’s complaint in early July. It said there had been some gaps in communication which it apologised for. It also apologised for the delay in finalising Y’s EHC Plan. It said there had been a backlog of cases, the case worker left and then there several discussions about the type of placement that would be suitable to meet Y’s needs. These factors contributed to the delay.
23. The Council issued Y’s amended final EHC Plan in late July and named School X. Y started attending School X in September.

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Analysis

24. We expect councils to follow the statutory timescales set out in the law and the Code. The Council agreed to complete an EHC needs assessment for Y within six weeks. However, there were significant delays after this. The EP should have provided their advice at the beginning of August 2023. They did not provide this until October 2023. After the Council received the EP advice, it should have issued Y’s final EHC Plan within six to eight weeks, that is by early/mid December 2023. The Council issued the amended final EHC Plan in late July. In total, the Council took 62 weeks, rather than 20 weeks, to finalise Y’s EHC Plan. These significant delays are fault.
25. The Council was also at fault for its communication with Mr X. There is no evidence it provided him with any updates from June 2023 to February 2024. I have also seen little evidence of regular updates with Mr X after this. Given the significant delays Mr X had experienced, the Council should have been providing him with regular updates on what was happening in Y’s case.
26. The Council’s delays during the EHC needs assessment process have caused Mr X significant uncertainty and frustration about Y’s education. The Council’s failure to communicate with him effectively also caused him further frustration and upset.
27. I cannot say whether the delay that occurred before the EP gave their advice in October 2023 meant Y lost out on special educational provision. This is because EP advice forms a key source of information for the Council to decide what provision to include in a child’s EHC Plan. The EP advice reflected Y’s needs as they were in October 2023. We cannot say the EP would have reached the same conclusions had it assessed Y two months earlier. This is because the assessment process takes account of the latest evidence relating to the child’s present circumstances, rather than looking at the child’s situation at the point when the Council should have issued the EHC Plan.
28. However, after the EP gave their advice, the Council took too long to finalise Y’s EHC Plan. I am satisfied on balance, the Plan the Council issued in July 2024 is not materially different from what it would have been if the Council had issued the Plan in December 2023. Therefore, Y has missed out on two terms of special educational provision. This is a significant injustice to him which the Council needs to remedy.
29. In its response to my enquiries, the Council says it has increased its staff and the number of permanent EPs. It has also created a new case management system, and it is investigating how to use technology when writing EHC Plans. I have therefore not recommended any further service improvements in this case.

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Agreed action

30. By 27 May 2025 the Council has agreed to:

• Apologise to Mr X and Y for the injustice caused by fault in this case.
• Pay Mr X £350 for his frustration, upset and uncertainty.
• Pay Mr X £3,600 to recognise the loss of Y’s special educational provision. We suggest Mr X uses this payment for Y’s educational benefit.

31. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

32. There was fault by the Council, which caused Mr X and Y an injustice. The Council has agreed to my recommendations and 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