Summary: Miss X complained about the delay in her son’s (Y) Education Health and Care needs assessment and the Council’s failure to communicate with her. We found fault with the Council. This fault caused injustice to Y and Miss X as there has been uncertainty about the educational support Y needs. Miss X was distressed by the lack of communication from the Council. The Council agreed to apologise, make symbolic payments for the delay and distress and introduce a system of regular communication for the parents and young people waiting for the assessments.

The complaint

1. Miss X complains about the Council’s delay in carrying out an Education Health and Care (EHC) assessment for her son (Y) and its failing to communicate with her. She says the Council’s delays meant Y did not get the right support at the transition time to post-16 education. They also affected her as she had to give up her work and caused her anxiety.

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The Ombudsman’s role and powers

2. 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)
3. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
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)
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

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

Legal framework

8. After conceding an appeal against the Council’s decision not to carry out an EHC needs assessment for the child, the Council has ten weeks to decide that it is not necessary for special educational provision to be made for the child in accordance with an EHC Plan. If the Council decides to issue an EHC Plan for the child, it must do that within 14 weeks from the date it sent its response to the Tribunal. (The Special Educational Needs and Disability Regulations 2014, regulation 45 (3A))

What happened

9. In 2023/2024 Y was in Year 11. From September 2024 he started attending a post-16 college.
10. At the beginning of March 2024 the Council conceded the appeal against its decision not to carry out an EHC needs assessment for Y.
11. In May the Council asked Miss X for her consent to share Y’s details when requesting advice from various professionals as part of Y’s EHC needs assessment. A few days later Miss X signed the form and sent it back.
12. At the end of July Miss X asked the Council for an update and a few days later complained about its failure to comply with the statutory timescales for an EHC needs assessment.
13. In its response to Miss X’s complaint the Council apologised for its delay and explained it had been caused by the shortage of Educational Psychologists (EPs). To address the nation-wide problem the Council had been working hard to recruit and retain EPs and to develop innovative ways of working such as offering “virtual assessments” where appropriate. The Council had also commissioned the services of an independent company to support with the backlog of the EHC needs assessments.
14. Miss X brought her complaint to us at the end of September 2024.
15. At the beginning of March 2025 in its response to my request the Council admitted it had had very limited communication with Miss X apart from replying to her complaints. It confirmed that an EP had now been allocated to prepare statutory advice for Y.

Analysis

16. As explained in paragraph eight of this decision the Council had ten weeks from the date of its response to the SEND Tribunal conceding the appeal to decide whether it was necessary for special educational provision to be made for Y in accordance with an EHC Plan. It should have done so by mid-May 2024.
17. The Council’s failure to complete this stage of an EHC needs assessment within the statutory timescales is fault. The Council explained the delay was caused by the shortage of EPs. This is a wider problem and as such beyond the Council’s control. As explained in paragraph three we would, therefore, see the Council’s delay in complying with the statutory timescales for Y’s EHC needs assessment as service failure.
18. At the same time we would expect the Council to:
• look for solutions to the problem of the shortage of EPs;
• regularly communicate with parents of children who are waiting for EP advice.
19. In its response to Miss X’s complaint the Council explained the steps it had taken to improve the situation for children and young people waiting for EP assessments. The Council demonstrated it had been proactive in seeking solutions to the problem.
20. The Council failed, however, to communicate with Miss X after asking her to sign the permission form in May 2024. As set up in our guidance notes “Principles of Good Administrative Practice” when delivering its services the Council should be citizen focused. This means informing people what they can expect. When the Council cannot, for reasons beyond its control, keep the statutory timescales for EHC needs assessments, to mitigate the negative impact of its delays it should regularly contact parents or young people waiting for these assessments with updates, such as the child’s place on the waiting list for an EP allocation and their approximate waiting time. Failure to do so is fault.
21. The Council’s service failure to carry out Y’s EHC needs assessment within the statutory timescales caused injustice to Y and Miss X. There has been ongoing and prolonged uncertainty about the level of support Y needs to access education. Because of his age Y should be adequately supported to maximise his learning potential as well as to develop his independence skills in preparation for adulthood.
22. The Council’s failure to provide regular updates about Y’s EHC needs assessment increased Miss X’s frustration and meant she did not know what to expect. In its responses to Miss X’s complaints the Council provided her with the reasons for the delays and listed the actions it had taken to increase the EPs’ capacity. There were no indications, however, of Y’s place on the waiting list or any approximate timescales for his assessment. Miss X was increasingly distressed at the lack of communication.

Remedies

23. In its response to my enquiries the Council offered to pay Miss X £100 a month for the delay in Y’s EHC needs assessment process. This is what we would expect.
24. For some months the Council has been working to improve its EP resources in line with its SEND Strategy Plan. In June 2024 the Council approved “The SEND Additional Assistance Plan”, which aimed to address the growing backlog of EHC needs assessment requests and the unacceptably long timescales for assessments and issue of EHC Plans. The Council has recognised the impact of the extended waiting time on children, young people and their families. The actions agreed in the plan include:
• recruitment of time limited SEND Operations Coordinators;
• recruitment of time limited SEND Operations Partners;
• implementing a “package of support while waiting”;
• increasing the level of support and challenge to schools and other educational settings;
• addressing the parents’ lack of confidence in the system through communications approaches and relationship building;
• increasing business support capacity;
• allocating Customer Service Centre to take incoming SEND phone calls;
• introducing SEND engagement facilitators.
25. The details of the plan show the Council’s determination to improve its SEND services, in particular within EHC needs assessments. Restoring parents’ and young people’s confidence in the system is an important part of it. The service improvement identified as needed through this complaint will support this goal as well as the Council’s efforts to improve the SEND team’s communication with parents and young people.

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Action

26. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Y and Miss X for the injustice caused to them by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• pay Miss X £1,100 for the delay in Y’s EHC needs assessment from mid-May 2024 up to mid-April 2025;
• pay Miss X £250 to recognise the distress caused to her by the Council’s failing to communicate with her.

The Council will provide the evidence that this has happened.

27. The Council will continue paying Miss X £100 for each full month of delay up to its decision on the need for an EHC Plan for Y. The first month will start on 15 April 2025 and will finish on 14 May 2025. The first payment will be made by 31 May 2025 and each one after that by the end of each month.
28. We also recommend the Council within three months of the final decision introduce a system of regular updates for parents and young people waiting for EHC needs assessments. The Council will decide on their frequency and content. The Council will provide the evidence that this has happened.

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Decision

29. I find fault causing injustice. The Council has accepted my recommendations so this investigation is at an end.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman