Summary: The Council was at fault for delay in completing an Education, Health and Care needs assessment and issuing a final Education, Health and Care (EHC) Plan for Miss X’s child, Y. It was also at fault for poorly communicating with Miss X. The Council has already apologised to Miss X for some of the fault. The Council has agreed to provide Miss X a further apology for the delay in completing the assessment and issuing a final EHC Plan. The Council will also make Miss X a symbolic payment to recognise the distress, frustration and uncertainty the matter caused her as well as for the provision Y did not receive.

The complaint

1. Miss X complained the Council delayed completing an Education, Health and Care (EHC) needs assessment for her child, Y. She also said the Council poorly communicated with her. Miss X said it caused her distress and frustration. She wants the Council to acknowledge it was at fault and implement changes to its service to prevent a recurrence of the fault.

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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. 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.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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How I considered this complaint

7. I spoke with Miss X and considered information she provided.
8. I considered information provided by the Council.
9. Miss X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care (EHC) Plans

10. Some children and young people with special educational needs and disabilities will have an EHC Plan. The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

Education, Health and Care needs assessment

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 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 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); and
• 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.

Advice and information for EHC needs assessments

12. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). Those consulted have a maximum of six weeks to provide the advice.

The Council’s complaints procedure

13. The Council has a two stage complaints policy. At both stages, the Council will respond to the complainant within 15 working days. If it is unable to do so, it will keep the complainant updated.

What happened

14. Miss X’s child, Y, has a learning difficulty which affects their ability to read and write. Y also experiences difficulties regulating their emotions.
15. At the beginning of March 2024, Miss X completed an application form to request the Council to complete an Education, Health and Care needs assessment for Y and submitted it to the Council.
16. In early May 2024, Miss X contacted the Council as it had not yet responded to her request. She asked the Council for an update. The Council called Miss X and apologised it had not responded to her email. It said it would backdate her request for an assessment to March 2024. The Council then sent Miss X a letter acknowledging her request.
17. At the beginning of June 2024, Miss X contacted the Council and asked it for an update on her request. The Council responded to Miss X and said it had not yet considered her request at a panel meeting. Miss X said she asked the Council when it would be considering her request at a panel meeting however, the Council did not respond to her.
18. In early July 2024, the Council wrote Miss X a letter which said it had agreed to complete an assessment. At the same time, the Council requested advice from an educational psychologist (EP).
19. In late July 2024, Miss X complained to the Council and said it had delayed responding to her request for an assessment. She wanted to know when the Council would complete the assessment as Y was due to start their first year at secondary school in September 2024.
20. In mid-August 2024, the Council responded to Miss X’s complaint and:
• said it had no record of Miss X’s request she sent at the beginning of March 2024;
• apologised to Miss X for its poor communication with her. It accepted it had delayed making a decision to complete an assessment and said it was partially caused by staff being on leave;
• apologised to Miss X it had not yet decided whether to issue Y an EHC Plan. It said it was awaiting advice from an EP and that there was a national shortage of EPs; and
• apologised to Miss X for its delayed response to her complaint. It said it was currently experiencing capacity issues with staff.
21. Shortly after the Council’s response, Miss X said she remained unhappy and asked the Council to investigate her complaint further. The Council acknowledged Miss X’s request and said it would respond to her complaint by the beginning of September 2024. The Council said if it was not able to respond by then, it would keep her updated.
22. Towards the end of September 2024, an EP completed an assessment with Y. The Council said the EP had provided their advice to it in mid-October 2024.
23. At the beginning of October 2024, Miss X contacted the Council and asked it for an update on her complaint. She said it had not provided her with any updates.
24. Towards the end of October 2024, the Council responded to Miss X’s complaint and:
• said it believed its stage one investigation of Miss X’s complaint was appropriate however, it apologised for its poor communication. It said it was currently experiencing a challenging time with a lack of capacity with staff and increased service demands;
• apologised for its delayed complaint response. It said it had addressed the delayed complaint response with staff and it was recruiting more staff to investigate complaints to improve its service; and
• said it had received the advice from the EP and would now forward her case to the next available panel for it to decide to whether to issue Y an EHC Plan.
25. At the beginning of November 2024, the Council’s panel considered Y’s case and agreed to issue an EHC Plan. However, the Council did not inform Miss X of its decision until early March 2025 and issued a draft amended EHC Plan at the same time.
26. In mid-May 2025, the Council issued a final EHC Plan. The EHC Plan outlined specialist provision which the Council should deliver to Y such as:
• 1:1 support from staff in the school;
• learning in small groups; and
• a workstation or a quiet place in the classroom for Y to be able to focus on tasks.
27. Miss X remained unhappy and complained to us.
28. In response to my enquiries, the Council said the delay in completing the assessment and issuing the final EHC Plan was caused by limited staff capacity, staff being on sick leave, changes with internal processes as well as the national shortage of EPs. The Council said it had met with Miss X in July 2024 to explain its reasons for any delay.

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Findings

29. Any delay I have considered in relation to the EHC needs assessment is from March 2024, when Miss X initially submitted her application to the Council. Although the Council said it had no record of receiving her request then, the Council told Miss X in May 2024 that it would backdate her request to March 2024.
30. Miss X asked the Council to assess Y for an EHC Plan in March 2024. If the Council had acted without delay, it should have received the EP advice 12 weeks after Miss X originally requested an assessment, therefore by the end of May 2024. The Council received the EP advice in mid-October 2024. The delay in completing an EP assessment of four and a half months was service failure, due to a national shortage of EPs.
31. To meet the 20-week timescale from the date of the assessment request, to issuing an EHC Plan, councils should be working to issue EHC Plans within approximately six to ten weeks of receiving an educational psychologist’s report. This will vary depending on what progress the council has already made towards the EHC Plan deadline at that time
32. As the Council had agreed to issue an EHC Plan, it should have done so within approximately eight weeks from when it received the EP advice. This would have been around mid-December 2024. Instead, the Council did not issue the final EHC Plan until mid-May 2025. The Council said this was because of a shortage of staff. This second period of delay was fault.
33. By mid-October 2024, the Council had information of Y’s educational needs and what support they required at school from the EP. I have considered the specialist provision outlined in Y’s EHC Plan issued in May 2025 and on balance, had the Council issued the Plan in early December 2024, Y would have had this specialist provision in place then. However, the provision was not in place until mid-May 2025. I have therefore made a further remedy based on the special educational provision Y did not receive between mid-December 2024 and mid-May 2025. This equates to just over one school term.
34. There is evidence the Council poorly communicated with Miss X from the date she requested it to complete an assessment. Miss X had to contact the Council several times initially for an update on her request as the Council had not kept her informed. The Council delayed responding to her complaints about the assessment delays. This was fault. It caused Miss X distress and frustration. The Council has apologised to Miss X which was appropriate.
35. I have not made any recommendations for the Council to carry out service improvements as we have recently investigated a complaint with the Council where we found fault with delayed Education, Health and Care needs assessments and delays issuing EHC Plans after it had received EP advice and we made recommendations. We will therefore monitor the Council through our case work.

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Agreed Actions

36. Within one month of the final decision, the Council has agreed it will:
• apologise to Miss X for the distress, frustration and uncertainty the matter caused her by delaying completing the assessment and issuing a final EHC 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 I have recommended in my findings;
• pay Miss X £450 for the distress, frustration and uncertainty it caused her with its delay in completing the EHC needs assessment because of a shortage of EPs; and
• pay Miss X £1000 for the specialist provision Y did not receive between mid- December 2024 and mid-May 2025 due to a shortage of staff.
37. The Council will provide us with evidence it has complied with the above actions.

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Final Decision

38. I have now completed my investigation. On the evidence considered, the Council was at fault. It has agreed to the recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman