Summary: We have found fault with the Council for delays during Mrs X’s son’s (Y’s) Education, Health and Care needs assessment and Mrs X’s son’s (Z’s) annual review process. These delays caused the family frustration, uncertainty and missed opportunity. The Council has agreed to apologise and make Mrs X a symbolic payment in recognition of this avoidable distress.

The complaint

1. Mrs X complained about the delayed Education, Health and Care (EHC) Plan process for her children; Y and Z. She said this delayed her right of appeal and meant that Y missed out on a school placement.

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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 law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. 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)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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(1), as amended)
8. 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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What I have and have not investigated

9. I cannot investigate matters related to the naming of schools in an EHC Plan. Mrs X had appeal rights that she used.

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How I considered this complaint

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

Law and guidance

EHC Plan

12. A child or young person with special educational needs (SEN) 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 assessment

13. 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.
• 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);

Reviewing EHC Plans

14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place.
15. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
16. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

What happened

17. Mrs X has two children: Y and Z. They have special education needs (SEN) and EHC Plans.

Child Y

Child Y: EHC Needs Assessment

18. Y attends a mainstream school.
19. Mrs X requested an EHC Needs assessment for Y in May 2024. The Council initially refused, and Mrs X applied for mediation.
20. In August, a day before the scheduled mediation meeting, the Council agreed to assess Y. This extended the deadline for completion of the assessment from October to November 2024. The Council explained to Mrs X that due to a shortage of Educational Psychologists (EPs), Y’s assessment would be delayed further.

Child Y: Mrs X complained about delays

21. In December, Mrs X complained about the delay in finalising Y’s EHC Plan. She said the delay meant that Y had missed out on a place in specialist provision within the school. Mrs X also complained about the absence of Y’s key worker and general poor communication from the Council.
22. The Council apologised for the needs assessment delay and for the lack of a key worker. It explained that because the specialist provision was pre-statutory, its availability was not dependent on a child having a complete needs assessment. It said it had regularly updated Mrs X of the delays in EHC needs assessments.
23. The Council set out the action it had taken to increase the number of EPs and key workers to reduce the backlog and delays in the future.

Child Y: EP assessment and EHC Plan issued

24. The EP assessed Y in February 2025, and the Council shared the report with Mrs X. It agreed to issue an EHC Plan and shared a draft Plan with Mrs X in April. The Council said it was awaiting a consultation response from Mrs X’s preferred specialist school before it could issue a final EHC Plan.
25. In May 2025, the Council issued Y’s final EHC Plan. It named Y’s current mainstream school, confirming that Mrs X’s preferred school did not have capacity to offer Y a place for September 2025.
26. Mrs X brought her complaint to the Ombudsman in May 2025.

Child Y: Mediation and appeal

27. In May, Mrs X applied for mediation. When the Council did not respond, she appealed against the named school in Y’s plan in August 2025. In early September, the Council agreed to name Mrs X’s preferred specialist school. It secured a placement for Y to start in September 2026.

Child Z

Child Z: Annual review

28. Z attended a specialist school and has had an EHC Plan since 2022.
29. In July 2024, the Council carried out an annual review of Z’s Plan. At the meeting, the Council recommended that the Plan should be maintained.
30. The Council should have notified Mrs X of a decision whether to cease, maintain or amend the EHC Plan within 4 weeks of the annual review meeting.

Child Z: Mrs X complained about the delays

31. In December 2024, Mrs X complained that the Council missed the statutory deadline regarding Z’s EHC Plan.
32. The Council apologised and said it would issue its decision by the end of December.
33. In April 2025, the Council responded to Mrs X’s escalated complaint. It apologised that it had not completed Z’s annual review process and said it would issue the final EHC Plan by the end of the month.
34. Mrs X brought her complaint to the Ombudsman in May 2025.
35. The Council held this year’s annual review in October 2025. At the time of this decision, the Council had still not issued a Final EHC Plan for Z.

My findings

Child Y

Child Y: delayed EHC needs assessment

36. The Council issued Y’s final EHC Plan in May 2025, when it should have issued it in November 2024. This was a delay of 6 months.
37. There is a reported national shortage of EPs. In its response to Mrs X’s complaint, the Council set out the action it has taken to reduce delays in the EHC needs assessments caused by the EP shortages. This includes recruitment of EPs. The Council also said it was recruiting more staff into the SEND service.
38. I am satisfied the delays in Y’s EHC Plan were mostly caused by the shortage of EPs. The Council has taken appropriate action to prevent any further delays.
39. Although the Council has tried to reduce the delays caused by EP shortages, we would still find fault when a council cannot meet statutory timescales because of circumstances beyond its control. As explained in paragraph five of this decision, we consider this to be service failure.
40. The Council has agreed to pay Mrs X £100 for each month outside the statutory timescales continuing up to when Mrs X had a right of appeal. This equates to £600 in this case. The £600 is a symbolic payment to recognise the frustration and uncertainty caused to the family by the delay.

Child Y: Missed opportunity caused by delay

41. The delay in the EHC Plan process meant that the Council only consulted Mrs X’s preferred choice of school in April 2025. At this point, all the places for September 2025 had been taken.
42. The Council agreed to name the preferred school (albeit for the following year) after Mrs X appealed. Therefore, on the balance of probabilities, but for the delay, the Council would have consulted the school sooner (in October 2024) and would have secured a place for Y to start in September 2025.
43. Y receives some SEN support at his mainstream school, but he should have been in a specialist school. This was a missed opportunity caused by the Council’s delay. The Council has agreed to an additional £500 in recognition of the distress caused by this missed opportunity.

Child Z

Child Z: delayed annual review process

44. The Council was at fault for not meeting the statutory deadline following Z’s annual review meeting.
45. This has caused the family frustration and uncertainty. However, I do not consider that it had caused Z to miss out on provision given that the Council proposed to maintain his EHC Plan.
46. The Council has agreed to make a symbolic payment of £200 to recognise the family’s distress.

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Agreed action

47. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for the delay during Y’s Education, Health and Care needs assessment and the delay during Z’s annual review process.
2. Pay Mrs X £1300 in recognition of the injustice caused by the delays in Y and Z’s EHC Plan processes.
48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. I have found fault causing an injustice. The Council has agreed to take action to remedy this injustice.

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Investigator's decision on behalf of the Ombudsman