Summary: Dr X complained the Council took too long to assess her child for an Education, Health and Care Plan, and that it delayed issuing the final Plan. The Council was at fault. This caused Dr X avoidable uncertainty and frustration, for which the Council should apologise and pay her £2,400. It should also issue Dr X’s child’s Education, Health and Care Plan.

The complaint

1. Dr X complained the Council took too long to assess her child, W, for an Education, Health and Care (EHC) Plan, and that it delayed issuing W’s first Plan. Dr X also complained:
• The draft EHC Plan the Council issued was inadequate;
• The Council failed to agree to a co-production meeting with her to discuss the draft Plan; and
• The Council did not increase the funding available for W’s school to allow them to provide the special educational provision in their draft EHC Plan in the meantime.
2. Dr X said this meant W was struggling in school and was attending on a part-time timetable. She also said the Council’s failings had disrupted family life, impacted on her work and wellbeing.

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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. 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)
5. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide it would be reasonable for the person to ask for a council review or appeal (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. 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)
7. 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

8. I have considered:
• All the information Dr X provided and discussed the complaint with her;
• The Council’s complaint responses and the supporting documents it provided; and
• The relevant law and guidance and the Ombudsman's guidance on remedies.
9. Dr 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

Relevant law and guidance

EHC Plans

10. 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.

EHC assessments

11. 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.
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement; and
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days; 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 (unless certain specific circumstances apply).

12. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• The child’s educational placement; 
• Medical advice and information from health care professionals involved with the child; 
• Psychological advice and information from an Educational Psychologist (EP); 
• Social care advice and information; 
• Advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• Any other advice and information the council considers appropriate for a satisfactory assessment. 

13. Those consulted have a maximum of six weeks to provide the advice. 

Appeals

14. The EHC Plan is set out in sections which include: 

• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and/or type of educational placement.

15. Once a council issues a final EHC Plan, the young person or child’s parents can appeal to the SEND Tribunal to change the content of section F and section I.

What happened

16. This section sets out the key events in this case and is not intended to be a detailed chronology.
17. W is a young child. In mid-December 2023, the Council received a request to assess W for an EHC Plan, ready for them starting school in reception in September 2024.
18. The Council issued its decision to assess W in mid-January 2024. It placed W on the waiting list to see an EP as part of the assessment.
19. After an appointment with W, the EP sent the Council their advice in mid-August.
20. In September W began attending school. A few weeks later, the Council told Dr X it had decided to issue an EHC Plan for W.
21. The Council sent the draft EHC Plan in early October 2024. Dr X was unhappy with the content of the Plan and asked the Council to make amendments to increase the provision in it.
22. The Council considered what school W should go to and concluded they needed a specialist school or a school with a specialist unit.
23. In mid-March 2025, Dr X told the Council she was unhappy it had not agreed to a co-production meeting to discuss amendments to W’s draft EHC Plan. She told us the Council was still consulting with potential schools for W to attend.
24. As of late March, the Council has not issued W’s final EHC Plan.

Previous investigation

25. The Council accepts there are delays obtaining EP advice because demand for EHC Plans has increased significantly and there are not enough EPs nationwide to meet that demand. The Council also accepts there are delays in it progressing assessments after it receives advice from an EP.
26. In response to previous investigations by the Ombudsman, the Council:
• Agreed, in August 2024, to prepare an action plan setting out its efforts to reduce delays in the EHC Plan process, including delays in obtaining educational psychologist advice and delays in the Plan writing process; and
• Evidenced it was taking steps to improve its EHC assessment process, including commissioning external EPs to reduce delays and improving case management.

Findings

What I have and have not investigated

27. The Ombudsman can decide not to investigate a matter if we decide it is reasonable for the complainant to appeal or ask for a review of a council’s decision.
28. I have not investigated Dr X’s complaints about the adequacy of W’s draft EHC Plan or the Council’s failure to agree to a co-production meeting about amendments to the draft Plan. That is because the result of any fault would likely be that W’s eventual final Plan would not meet their needs. The Ombudsman cannot make changes to a child’s EHC Plan, only a council or the SEND Tribunal can do this. Dr X will have the right to appeal the content of the final EHC Plan to the SEND Tribunal and it would be reasonable for her to use that right if she is unhappy with its contents.

EHC assessment delay

29. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Following Dr X’s request for an EHC assessment the Council should have completed W’s assessment and issued their final EHC Plan by early May 2024. As of March 2025, the Council has yet to issue a final Plan.
30. Some of the delay was due to the nationwide shortage of EPs. The EP should have sent their advice no later than early March 2024. The Council received the advice in mid-August 2024; just over five months late.
31. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons why the EP advice took longer than it should have, the delay was fault. W’s wait to be seen by an EP meant their EHC assessment was delayed.
32. Once the Council received the EP advice, it had around eight weeks to issue W’s final EHC Plan; by mid-October 2024. The Council issued W’s draft Plan in mid-October 2024 and as of March 2025, it has not finalised the Plan. This is a significant delay of 24 weeks (over five months) and was fault. It appears some of the delay was due to challenges finding a specialist school for W and because Dr X does not agree to the content of the Plan. However, the Council can issue EHC Plans which name a type of school rather than a specific school. Issuing the EHC Plan would then give Dr X the right to appeal the content of the Plan, including the special educational provision, to the SEND Tribunal. Without a final Plan, Dr X cannot appeal to the Tribunal. This is an injustice in its own right.
33. Educational psychologist advice is the key source of professional information for a child’s EHC Plan. The advice is based on the child’s presentation on the day of the assessment. For that reason, I cannot say, even on balance, that had the Council obtained the advice by early March, it would have resulted in the same provision in W’s draft EHC Plan. The injustice was therefore uncertainty and frustration for Dr X between March and October 2024.
34. When the Council received the EP advice in August 2024 it had the core information necessary to prepare W’s EHC Plan. Although Dr X requested some amendments to the Plan since seeing the draft in October 2023, the Council has not issued a further draft Plan. I am therefore satisfied, on balance of probabilities, that when the Council issues the final EHC Plan, it will probably contain the same provision as in the draft Plan. Therefore, the delay finalising W's EHC Plan between October 2024 and March 2025 meant W missed out on special educational provision they should have had.
35. I am pleased to see the Council is making efforts to resolve the issue, as set out in paragraphs 25 and 26. Because the Council has already taken suitable steps to decrease the wait time for EP advice and improve how it carries out EHC assessments, I have not made a further recommendation.

Interim special educational provision

36. Dr X complained the Council did not give W’s school extra funding so it could implement the special educational provision in their draft EHC Plan in the meantime. Councils are only under a duty to secure the special educational provision in a child’s EHC Plan once the Plan is finalised. There is no requirement for them to provide interim provision so the Council was not at fault.

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Action

37. Within one month of the date of my final decision, the Council will:
1. Apologise to Dr X for the uncertainty and frustration she felt because of the delay assessing W for an EHC Plan and issuing the final Plan. 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.
2. Pay Dr X £500 in recognition of that uncertainty and frustration.
3. Pay Dr X £1,900 in recognition of the impact of the missing special educational provision on W. This amounts to £950 per term of education, in line with the Ombudsman’s guidance on remedies, considering W’s age and the provision in their draft Plan.
4. Issue W’s EHC Plan and inform Dr X of her right to appeal the content of the Plan to the SEND Tribunal.
38. The Council will provide us with evidence it has complied with the above actions.

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Decision

I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman