Summary: Mrs X complained the Council delayed completing her child’s (Y) Education, Health and Care (EHC) needs assessment in line with statutory timescales. This in turn caused a delay in issuing the EHC Plan. She also complained the Council has delayed carrying out an Occupational Therapy (OT) assessment as part of the EHC needs assessment. The Council was at fault because it failed to issue Y with an EHC Plan within the statutory timescales, caused in part by a delay in obtaining Educational Psychologist advice. There was also a 10 month delay in carrying out the OT assessment. The Council has agreed apologise and make a payment to recognise the distress, frustration and some loss of provision.

The complaint

1. Mrs X complained the Council delayed completing her child’s (Y) Education, Health and Care (EHC) needs assessment in line with statutory timescales. This in turn caused a delay in issuing the EHC plan. She also complained the Council has delayed carrying out an Occupational Therapy (OT) assessment as part of the EHC needs assessment. This has caused distress, frustration, and uncertainty about the provision her child would receive.

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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. 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)
5. 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

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

Relevant Law and Guidance

8. 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.
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 assessments and producing EHC Plans. The Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;

• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

10. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
11. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement. The appeal can be against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.

What happened

12. Mrs X has a child Y of secondary school age. Y has special educational needs. In November 2023, Mrs X asked the Council to carry out an Education, Health and Care (EHC) needs assessment. The Council agreed to carry out the assessment and requested Educational Psychologist (EP) advice. It should have received the EP advice by late January 2023 and ultimately it should have issued the final EHC Plan in March 2024.
13. In February 2024, Mrs X raised a stage one complaint as the Council had failed to obtain EP advice within timescales. She also complained the Council had not agreed to obtain an OT assessment to inform the EHC needs assessment. Mrs X said this was a reasonable request as Y’s school has identified them as having sensory needs and recommended they have an OT assessment.
14. In April 2024, the Council issued a stage one response saying the Council is now in receipt of EP advice dated 15 March 2024 and it had agreed to issue an EHC Plan. It apologised for exceeding the 20 week timescale and it said it would issue a draft Plan shortly. The Council also said it did not initially agree to an OT assessment, but it reconsidered this in February 2024 and it placed Y on the OT allocations list. The Council advised it placed Y on the allocation list in the position she would have been, had it made the referral at the time EHC needs assessment was originally agreed. The Council said it would update the EHC Plan once it received the OT report.
15. Mrs X escalated her complaint the same month. The Council issued a stage two response upholding her complaint. The Council apologised and offered Mrs X £150 in recognition of the delays.
16. The Council issued Y’s final EHC Plan at the end of May 2024. Section F included the specialist provision Y was entitled to which included:
• access to an emotional literacy programme delivered weekly
• access to a weekly intervention targeting social communication skills
• adaptation of tasks including additional processing time
• low sensory arousal areas to complete tasks
• consistent small group and 1:1 session support as part of daily timetable
• weekly meetings to discuss plans and targets with a trusted member of staff
• consistent and regular access to the SEN team
• sensory regulation plan
• regular movement breaks
17. As of October 2024 the Council had still not carried out Y’s OT assessment. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.

Council’s response to our enquiries

18. The Council says the OT contacted Mrs X and Y at the start of January 2025 to arrange the assessment. The Council said the OT assessment will take place at the end of January 2025 and the report will be available to the Council the following month.
19. The Council says the service was recommissioned in February 2024 with an increased OT workforce. It has had successful recruitment initiatives over the past year to minimise vacancy rates. It says it has transformed the service to enhance early intervention and support so that children requiring specialist OT can access support. The Council said it is working towards 92% compliance by the end of March 2025 and EHC needs assessment compliance target set at six weeks.

My findings

EHC needs assessment

20. Following Mrs X’s request for the Council to carry out an EHC needs assessment, it had to follow the statutory timescales set out in the law and the code. Therefore, the Council should have decided whether to issue a Plan by the end of February 2024 and then issued the final Plan by end of March 2024.
21. The EP advice should have been available to the Council by late January 2024 in order for it to have met the March deadline. It did not receive the EP report until mid-March 2024 which was a delay of six weeks and fault. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases.
22. After the EP gave their advice, the Council took too long to finalise Y’s EHC Plan. With EP advice in hand, it should have issued the final Plan in less than eight weeks after the EP advice, taking account of the timescales set out in the Code. This includes time to:
• write a draft EHC Plan;
• issue it to the family and give them 15 days to consider the draft EHC plan and provide their comments; and
• 15 days for the education establishment to comment.
23. The overall guidance is that final plans should be issued as quickly as possible.
24. This should have been completed by 10 May 2024 at the latest but was delayed by two weeks. This fault caused two weeks delay to Y receiving the provision in her EHC Plan. It also slightly delayed Mrs X’s appeal rights.
25. We have found similar fault with the Council on a separate case. Following that case, the Council has explained what action it is taking to ensure EHC Plans are issued within statutory timescales including a recruitment strategy to access and recruit more EPs. Therefore, it does not require a further service improvement.

OT assessment

26. In February 2024, the Council agreed to an OT assessment for Y as part of the EHC needs assessment. The Council should have received this within 6 weeks of its request in order to inform the EHC needs assessment and so any OT provision could be included in the EHC Plan. The OT assessment was arranged for Jan 2025 which was a delay of approximately 10 months and fault. I cannot comment on the extent the Council’s actions have impacted Y as the outcome of the assessment and the subsequent intervention Y requires is currently unknown. However, the delays have caused Mrs X distress, frustration and uncertainty about whether Y should have OT provision in the EHC Plan of May 2024. If Mrs X remains dissatisfied with the contents of any amended EHC Plan upon receipt of the OT assessment, she can lodge an appeal with the SEND tribunal.
27. The Council has explained how it is increasing its OT workforce and working towards its compliance rates. Therefore, a service improvement is not required.

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Action

28. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise to Mrs X to recognise the distress, frustration and uncertainty caused by the delays. 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.
2. Pay Mrs X £150 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s delay in issuing Y with an EHC Plan caused by the delay in obtaining advice from an Educational Psychologist.
3. Pay Mrs X £150 to recognise Y’s loss of opportunity to receive provision in line with her EHC plan between mid and late May 2024 caused by the delay in issuing the final Plan after it had obtained EP advice.
4. Pay Mrs X £300 to acknowledge the distress, frustration and uncertainty caused by the Council’s delay in getting Y assessed by an OT. This includes the £150 offered to Mrs X when the Council issued its stage two complaint response.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. I have completed this investigation. I found fault and the Council has agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman