Summary: The Council delayed issuing Miss X’s child, Y’s, Education, Health and Care Plan. This caused Miss X frustration and distress and meant Y missed out on one term of special educational provision. The Council has agreed to apologise and make a payment to Miss X.

The complaint

1. Miss X complained the Council delayed in carrying out an Education, Health and Care (EHC) needs assessment for her child, Y. She says this meant Y missed out on the provision in their EHC Plan, which impacted their health. She wants the Council to issue an EHC Plan which meets Y’s needs and compensate her for the delay.

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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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What I have and have not investigated

6. 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)
7. I have investigated events up to January 2025 when the Council issued Y’s final EHC Plan. Miss X has a right of appeal over the Plan which I consider it was reasonable for her to have used.

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. Miss X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Education Health and Care (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. 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. 
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. 
• 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).  

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. 

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

13. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;

What happened

14. Miss X asked the Council to carry out an EHC needs assessment of her child, Y, on 9 November 2023. On 24 November 2023 the Council agreed to carry out the assessment. Y was due to turn five and be of statutory school age in December 2024. As part of its assessment the Council asked for advice from an Educational Psychologist (EP).
15. In March 2024 Miss X contacted the Council. She said the Council had not met the statutory timescales to issue Y’s EHC Plan. The EP returned their advice to the Council on 5 July 2024. The Council issued a draft EHC Plan on 14 August 2024.
16. Miss X complained to the Council in October 2024. She said the Council had failed to respond to her contact in March 2024 and had still not issued an EHC Plan. She said Y was struggling in their current school which could not meet Y’s needs without the EHC Plan in place.
17. The Council responded to Miss X’s complaint in November 2024. It accepted it had not met the timescales to assess Y or issue a final EHC Plan. It said the staff member handling the case was absent and it apologised for the lack of communication. It said it was consulting with schools and would be in touch. Miss X asked the Council to escalate her complaint to stage two of its complaints procedure.
18. In its stage two response the Council reiterated it had consulted with a wide range of schools but not been able to secure a placement for Y. It said Y should continue to attend their current school, which was receiving additional funding to support Y. Miss X continued to complain to the Council. She said Y’s school was unsuitable. Miss X complained to the Ombudsman in January 2025.
19. The Council issued Y’s final EHC Plan on 23 January 2025. It named Y’s current school as an interim measure until it could identify an appropriate specialist setting.

My findings

20. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Miss X requested an EHC needs assessment on 9 November 2023. Having agreed to assess Y the Council should have issued Y’s Plan within 20 weeks of Miss X’s request. This was by 28 March 2024. The Council issued Y’s EHC Plan on 23 January 2025; a delay of ten months. This was fault.
21. EHC needs assessments must include advice from an Educational Psychologist. The Council should have ensured it received the psychologist’s advice within six weeks of it agreeing to assess Y. It took 32 weeks to receive this advice, a delay of six months causing distress and frustration.
22. The Council has not met these timescales due to the national shortage of Educational Psychologists and the increased demand for EHC needs assessments. The Ombudsman can make findings of fault where there is a failure to provide a service regardless of the reasons for that service failure. The delay in progressing Y’s EHC needs assessment is fault (service failure). I cannot say whether the delay that occurred before the Educational Psychologist gave their advice likely meant Y lost out on special educational provision. This is because the advice reflected Y’s needs at the time of the assessment, not necessarily as they would have been when it was originally due. However, the fault caused Miss X and Y frustration, distress and uncertainty.
23. Once the Council received the Educational Psychologist advice in July 2024, it should have issued Y’s final EHC Plan within around six weeks. It took the Council 28 weeks to issue the final EHC Plan. This was 22 weeks too long and was fault.
24. I am satisfied on balance, that the EHC Plan the Council issued in January 2025 is not materially different from what it would have been if the Council had issued the Plan in August 2024, six weeks after it received the Educational Psychologist advice. During the term before the Plan was issued, Y attended school. Miss X says Y frequently had to return home, with no safe space within the school.
25. While Y missed one term of the special educational provision in the EHC Plan, this did not result in a complete loss of education provision. We typically recommend between £900 and £2400 per term in recognition of lost provision, depending on the severity of loss. The figure can be lower when considering any educational provision made during the period and whether additional provision can remedy some or all of the loss.
26. Considering Y was attending school during this period, but was not able to attend all the time, I have recommended £900 for the missed special educational provision, in line with our Guidance on Remedies.
27. The Council has explained the efforts it is making to resolve the delays in the EHC needs assessment process. Because the Council is already taking suitable steps to address the delays, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Action

28. Within one month of the final decision, the Council has agreed to:
1. Apologise to Miss X for its delay in issuing Y’s final EHC Plan and the frustration caused by its delayed complaint response. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
2. Pay Mrs X £600 to recognise the distress and frustration cause by the delay in assessing Y. This equates to around £100 per month for the time between when it should have received the Educational Psychologist’s advice to when it received that advice.
3. Pay Mrs X £900 to recognise the impact of the loss of one term of special educational provision on Y.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman