Summary: Ms X complained the Council has not provided an Educational Psychologist report for her child, which has caused delay receiving the Education, Health and Care Plan. The Council delayed issuing both. This is fault causing injustice. The Council agreed a financial remedy of £1,200.

The complaint

1. Ms X complained the Council has not provided an Educational Psychologist (EP) report for her child, C, which has caused delay in the providing the Education, Health and Care (EHC) Plan. C has not been in school since November 2023 and she has missed education. This has caused both Ms X and C distress. Ms X would like the Council to allocate an EP and provide an EHC Plan.

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The Ombudsman’s role and powers

2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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)

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What I have and have not investigated

5. I have only investigated Ms X’s complaint about the delay in the Council providing an Educational Psychologist (EP) report and delay issuing an Education, Health and Care (EHC) Plan as outlined in her complaint to the Council in July 2024. Anything that has happened since this date is not part of my investigation.
6. I have not investigated the contents of the EHC Plan. If Ms X is not satisfied with this, she has a right of appeal to the Tribunal.
7. Ms X said the Council has delayed responding to her request for Education Other Than At School (EOTAS) which she made in November 2024. This has happened since she complained to the Council and does not form part of my investigation. If Ms X wishes to complain about this, she will need to raise it with the Council first.
8. Information on areas outside of my investigation has been provided for background and context only.

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council and relevant law, policy and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

The Education Health and Care (EHC) Plan 

11. A child or young person with special educational needs may have an Education, Health and Care (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. 

Timescales and process for EHC needs assessment 

12. 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);  

Advice and Information for EHC needs assessments

13. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).
14. Those consulted have a maximum of six weeks to provide the advice. 

Deciding whether to issue an EHC Plan

15. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.

Appeal rights

16. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan; and
• amendment to these elements of an EHC Plan.

17. 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)
18. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
19. 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.

What happened

20. I have summarised below the key events; this is not intended to be a detailed account.
21. In October 2023, C was on the roll at a mainstream secondary school (School). Ms X applied for an EHC needs assessment for C. From around this time, C was not attending school full time. An Education Inclusion Officer (EIO) from the Council met with C’s School to discuss Alternative Provision and drafted an Individual Alternative Education Plan (IAEP). The School set up a reduced timetable in school and blended this with private tutoring. The School was exploring dog therapy for C.
22. At the beginning of November, the School held an Alternative Provision meeting. It said the plan was for C to receive nine hours of mainstream education and two hours private tutoring. The School was supporting and checking C’s progress.
23. In December, the School updated the EIO about the further support it offered to C. It said it offered C to change class, move her to a smaller SEN group or attend lessons with the head of year. C did not want to attend. The School had provided two private tutors but C did not engage. The School also offered online teaching but Ms X said she thought C would not engage
24. In January 2024, C received a diagnosis for ADHD.
25. In February, the School contacted the EIO and said C was not engaging with the provision. The EIO telephoned Ms X to discuss. The EIO said the School offered alternative provision and discussed the alternatives with Ms X. The EIO explained the School offered tutoring at home, Ms X said this caused C anxiety as it was in her safe space. It also offered tutoring at an external place, Ms X said this would also cause C anxiety. The School offered online tutoring, Ms X said C would refuse this because of anxiety around the camera. The School offered Dog therapy, the company could only do this at School or the home which C was too anxious to do. The EIO also said the School offered reduced and customised timetables.
26. Ms X said she feels exasperated and knows the School is offering support to C. Ms X said C wants to go to School and has a favourite teacher. The EIO said they would contact the School and ask if C’s favourite teacher could provide mentoring. She also said she would ask if the camera could be turned off for online tutoring.
27. The EIO emailed the School with new suggestions. The School said the teacher could not mentor C but said they would support her where possible. For online tutoring, the safeguarding controls say the camera needs to be on.
28. The EIO spoke to Ms X and explained it is difficult to provide an education for C if she is not open to the support offered.
29. In April, the Council agreed to complete an EHC Needs Assessment and sent a request for advice from the EP.
30. In May, the School held a meeting to discuss the alternative provision. C’s package was for ten hours mainstream education and two hours with the personal tutor. C was not accessing her timetable or the provisions the School put in place. The School said it was continuing to oversee and provide support.
31. The EP completed their report in the middle of September.
32. In November, the Council sent Ms X a draft copy of the EHC Plan.
33. The Council issued the final EHC Plan in early February 2025. It named the same mainstream School where C is enrolled with extra funding for educational support.

Ms X’s complaint and the Council’s response

34. Ms X complained to the Council in July 2024. Ms X said she applied for an EHC needs assessment in October 2023 and has been advised the EP is not available until October 2024. She also said C has been out of school since this time. The Council provided a stage one response later the same month, a stage two response in early August and a stage three response in late August.
35. The Council fully upheld Ms X’s complaint. It said it had sought an EP report but had not received it. It could therefore not issue a draft EHC Plan which was now outside the statutory timeframe. It said the delay was unacceptable and apologised. The Council said the delay is due to a nationwide lack of EPs. It explained it had devolved funding for alternative provision to schools. C’s School had received funding for her.
36. The Council said it was making service improvements to address the issues including increasing staffing and resource allocation which included appointing EPs and support staff and using external EP support. It was also introducing robust monitoring systems to track the progress of EHC needs assessments to help identify delays and take prompt action.
37. Ms X complained to the Ombudsman in August 2024. She said the Council had not adhered to legal deadlines. C was still waiting to see an EP and did not have an EHC Plan. She said C had been out of school since November 2023 and has missed education. It has also caused both Ms X and C distress. On the complaint form, in response to the question “what should the Council do to put things right”, Ms X said to get C an EP soon.
38. In response to my enquiries, the Council said the delay in providing an EP report is because of a national shortage of EPs. It explained it is trying to address the situation by expanding the EP workforce and using locum EPs. It is also exploring how it can offer assessments in a more time-effective way, for example, working with Assistant EPs and members of the SEND District Teams to gather information, including existing professional information which may be relevant for assessment.

Analysis – is there fault causing injustice?

39. Ms X asked the Council to do an EHC needs assessment on C in early October 2023. It should have decided whether to complete an assessment within six weeks, by the middle of November. The Council decided to do an assessment in early April 2024. This is a delay of around 20 weeks. This is fault.
40. The Council sought an EP report the day after it decided to carry out an EHC needs assessment. The Council should have received the report within six weeks, which would be late May. The Council received the EP report in the middle of September. This is a delay of four months. This is service failure.
41. The Council should issue a final EHC Plan within 20 weeks of a request. This means the Council should have issued the final EHC Plan by late February 2024. It issued the final EHC Plan in early February 2025. This is a delay of roughly one year. This is fault.
42. The EHC Plan provides C with a place at the same mainstream school with a budget for support. If Ms X is not satisfied with the Plan, she may appeal this to the Tribunal. Because there is a right of appeal, it is not something I can look into.
43. During this time, Ms X said C has not been in school full-time and has missed education. As set out above, the Council has a duty to provide education. The EIO worked with the School and Ms X to provide alternative provision for C, suggested alternatives and new ideas. As part of the package, the School offered C a flexible and reduced timetable, change of class, private tuition at home, online tutoring and dog therapy. The package of alternative provision offered by the School, commissioned by the Council was extensive and in line with that offered in the Final EHC Plan. The Council is not at fault.
44. When complaining to the Ombudsman, the remedy Ms X sought was for the Council to provide an EP report and an EHC Plan. Ms X has received both. This limits any further injustice.
45. The delay in receiving both the EP and EHC Plan has caused distress, frustration and uncertainty. This is injustice.

The Council’s remedies

46. The Council has admitted there has been a delay in providing the EP report and the EHC Plan. It upheld Ms X’s complaint and apologised.
47. The Council has made several service improvements which form part of its action plan for improving its Special Education Needs team. I do not need to make further recommendations.

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Action

48. Within four weeks of the final decision, the Council agreed to:
• Pay Ms X £1,200 to recognise the distress, frustration and uncertainty caused by a 12-month delay in agreeing to assess C, delay issuing the EP report due to a shortage of EPs and delay issuing the final EHCP.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. The Council delayed providing an EP report and EHC Plan. This is fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman