Summary: Mrs X complained of significant delay in the Council’s assessment of her son for an Education Health and Care Plan (EHC Plan). She also complained she was unreasonably denied sight of her son’s EP report and communication was poor. We found there was significant delay in the EHC Plan assessment process, but no fault in the Council’s overall communication and sharing of the EP assessment report. We recommended a remedy to reflect the loss of education and support during the period of delay.

The complaint

1. Mrs X complains there was significant delay in assessing her son, Y, for an Education Health and Care Plan (EHC Plan). There was also significant delay in issuing the final plan. She explained that the delay caused undue stress for Leo, impacted his mental health and educational progress.
2. Mrs X also complains that she was unreasonably denied sight of an Educational Psychologist report which was completed as part of the EHC Plan needs assessment.
3. Mrs X complained that communication about the needs assessment process and the way her complaint was handled was poor and this also caused stress to the family as a whole.

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The Ombudsman’s role and powers

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 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)
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. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Timescales and process for EHC Plan assessment

9. 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 a council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision within six weeks.
• If the council decides not to conduct an EHC needs assessment it must provide information about the applicant’s right to appeal to the Tribunal.
• 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).

Section 19 of the Education Act 1996

10. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
11. The Council’s Section 19 duty applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
12. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What Happened

Education Health and Care Plan Process

13. The information in this statement provides an overview of the key events most relevant to the complaint. It is not intended to set out everything that happened.
14. Mrs X requested an EHC needs assessment for her son, Y on 27 February 2024. The Council agreed to conduct an assessment on 5 April. This was within the six weeks set out by the SEN Code.
15. There was a significant delay in the assessment process. This was caused by a shortage of Educational Psychologists (EPs).
16. Mrs X complained on 19 June 2024 that the Council was in breach of the statutory timescales for assessing Y for an EHC Plan and she noted Y was increasingly reluctant to attend school. She emphasised that Section 19 of the Education Act 1996 required councils to ensure a suitable education was provided and there was currently a mismatch between Y’s needs and his current educational environment.
17. The Council acknowledged the complaint and confirmed its complaint response was due by 26 July 2024. The Council sent a response on 25 July. The Council stated it was unable to determine what education was suitable without completing the EHC Needs Assessment. It noted the difficulties in obtaining the EP report and apologised for the delay. It upheld the complaint and stated it would progress it to a decision within two weeks of receipt of the EP report and would issue a plan within 3 weeks of the decision (provided it agreed to issue an EHC Plan). The Council stated it could not determine what suitable education should be provided for Y prior to receiving the EP report.
18. On 26 July Mrs X asked the Council to escalate the complaint. She sought an EP assessment without further delay and interim support while the process was ongoing.
19. An EP was allocated to Y’s case on 30 September. The Council says it advised Mrs X that the EP report was expected by 4 November, and it would have to go through a quality assurance process that could take five weeks. It stated, it expected to issue the EHC Plan by early December.
20. On 30 September Mrs X chased for a response to her stage two complaint. She chased a response again on 10 October.
21. On 11 October the EP sent their report to the Council. On 22 October, Mrs X asked the Council to share a copy with her. Mrs X stated she expected this to be made available within two weeks.
22. She chased her request on 24 October. The Council responded on 25 October explaining the report was awaiting quality assurance. The case officer agreed to upload it to their system (so that Mrs X could see it) as soon as she was sent it by colleagues carrying out quality assurance checks.
23. On 28 October the case officer emailed Mrs X to tell her the quality assurance team had raised several queries with the EP. I note Mrs X contacted the EP and she understood the EP responded the same day. The Council says it received and uploaded the EP report to its systems on 4 November. This made it available to Mrs X.
24. The Council decided on 13 November that it should issue an EHC Plan for Y and advised Mrs X of this.
25. The Council responded to Mrs X’s stage two complaint on 19 November. It summarised when it had received the EP report and stated a draft EHC Plan would be issued by 27 November. The Council commented on Mrs X’s request for interim support for Y, while awaiting the EHC Plan. It stated until he had an EHC Plan, ‘statutory support’ could not be provided for Y. It stated while Y was being assessed, his existing school would be responsible for supporting him and ensuring his needs were met during the school day. It stated the SEND team could offer advice. The Council’s response ended by incorrectly referring to actions it had already taken to acknowledge the delays Y had experienced. Infact, the actions it referred to related to a separate complaint Mrs X made about similar, but unrelated, issues for Y’s brother.
26. A draft EHC Plan was issued on 3 December.
27. The Council met with Mr and Mrs X on 10 December and it says it provided several updates in December and January. The Council issued the final EHC Plan after 48 weeks on 30 January 2025.

Education Provision

28. When Mrs X complained to the Council in June, she raised concern that Y’s commutes to school were difficult because of increasingly challenging behaviour and a lack of access to education. She referred to Y being increasingly reluctant to attend school and to the Council’s duty to ensure education is appropriate. She stated Y was lacking the appropriate support in his current setting. In follow up correspondence Mrs X stated Y’s education was being compromised by delays in the EHC assessment process. She also explained she was concerned about his mental state.
29. The Council’s response to Mrs X’s complaints stated that, while it was aware the delay in the EP assessment was unsatisfactory, it could not determine what additional support Y needed until the assessment was completed. It told Mrs X that Y’s existing school would be responsible for supporting him and ensuring his needs were met during the school day.
30. Mrs X told us Y’s attendance dropped significantly from February 2024. Y was absent for a week, and there was then irregular attendance with frequent lateness and school refusal due to his deteriorating mental health. In response to our enquiries the Council told us that Y’s attendance at school in the period concerned was 77% and that Y was attending school full-time. The Council acknowledged the school had recorded numerous late marks. However, it stated that Y’s place was available to him, and it did not consider other educational arrangements because it considered his school place was suitable.

Was there fault by the Council

Delay in the EHC Assessment process

31. To comply with the SEN Code, Y’s Final EHC Plan should have been issued within 20 weeks of Mrs X’s request for assessment; by 16 June 2024. The Council issued the final EHC Plan after 48 weeks on 30 January 2025. The 28-week delay in issuing the EHCP in Y’s case amounts to service failure by the Council.
32. Mrs X explained the severity of Y’s condition escalated while the assessment process was ongoing and managing his needs was being more complex. She explained Y was increasingly reluctant to attend school and his commutes to school were fraught with risks. So, Mrs X also complained that Y’s needs were not being met and he was not provided with a suitable education during the period that the EHC needs assessment was delayed.
33. Where fault by the Council has resulted in the loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• The loss of or delay to rights of appeal to tribunal.
34. In Y’s case the support set out in his EHC Plan was delayed for 28 weeks as a result of the difficulties in arranging for an EP to assess him. This meant Y did not receive the EHC Support he should have during this period. Although Y was able to continue to attend school while awaiting the assessment, it is clear that without the relevant support the education he received during this time was affected and the impact on his mental health led to difficulties with school refusal and lateness. Taking all of these factors into account I have recommended the Council makes a payment of £3,000 to Mrs X for Y’s benefit. This is based on £1,500 per term for a delay of approximately two terms.

Section 19 Duty

35. Statutory guidance ‘Arranging education for children who cannot attend school because of health needs (Dec 2023)’ makes it clear that Councils are not expected to become involved in providing an education in situations where a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school. It says, where possible, a child’s health needs should be managed by their school to enable them to be educated there with support, and without the need for intervention of the local authority.
36. Based on the information we have seen, I do not consider the Council’s Section 19 duty was engaged in Y’s case. This is because Y was attending school, albeit with some periods of illness and difficulties with his mental health leading to lateness. However, as I have set out above, the impact on the education he was receiving during the period of the delayed EHC needs assessment has been taken into account in deciding on the appropriate remedy for the complaint.

Communication and sharing of Y’s EP Assessment Report

37. I recognise that the delay in assessing Y and producing his EHC Plan was difficult and distressing for Mrs X. While there was overall delay, I did not find there was any undue delay in providing Mrs X with a copy of the EP Report. The Council’s procedure is to quality assess an EP report prior to sharing this. It was shared promptly once the Council was satisfied it was suitable and could be relied upon.
38. I did not find overall there was a failure to communicate appropriately with Mrs X. There is evidence updates were provided to Mrs X at key points of the process. However, I note that the Council did not produce the draft or final EHC Plan in the timescales it set out in its complaint responses. The complaint response also contained incorrect information, conflating Mrs X’s complaint about Y with an earlier, unrelated matter. This caused confusion, so there was also fault in the way the Council responded to the complaint.

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Action

39. Within four weeks of our final decision the Council should:
40. Apologise to Mr and Mrs X for the delay in assessing Y for an EHC Plan and the lack of provision that occurred as a result. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
41. Make a payment of £3,000 to Mrs X, for Y’s benefit to reflect the lack of provision we have identified by the delay in the Education Health and Care Plan Needs Assessment.
42. Make a payment of £300 to recognise the distress and difficulties the delay caused to Mr and Mrs X and for the issues in the complaint response.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman