Summary: Ms X complained the Council delayed completing her child (Y’s) Education, Health and Care (EHC) needs assessment in line with statutory timescales. This in turn caused a delay in issuing the EHC Plan. The Council was at fault as it failed to issue Y’s EHC Plan within the statutory timescales, caused by a delay in obtaining Educational Psychologist advice. The Council has agreed to make a payment to recognise the distress, frustration and uncertainty caused.

The complaint

1. Ms X complained the Council delayed completing her child (Y’s) Education, Health and Care (EHC) needs assessment in line with statutory timescales. This in turn caused a delay in issuing the EHC plan. This has caused Ms X distress, frustration, and uncertainty about the provision Y 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 Ms X and the Council as well as relevant law, policy and guidance.
7. Ms 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

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.

What happened

11. Ms X has a child Y who is of primary school age and has special educational needs. In December 2023, Ms 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 in January 2024. It should have received the EP advice by March 2024 to give notice of its decision about whether to issue an EHC Plan within 16 weeks from the date of the request for an assessment. It should therefore have told Ms X if it intended to issue Y an EHC Plan by early April 2024 and, if it decided to issue a Plan, it should have finalised this by May 2024.
12. Ms X raised a stage one complaint in November 2024 as the Council had not completed the EHC needs assessment within timescales. The Council responded the same month accepting the delays and informed Ms X this was due to EP shortages. The Council said, in response to the shortages, it had increased incentives for EPs to work at the Council. It was also working with locum EPs and a number of recruitment agencies.
13. Ms X escalated her complaint to stage two. The Council issued a response apologising for the delay in the assessment process and advised it had reached out to the school to see if it required support for Y whilst the assessment was ongoing.
14. The Council received the EP advice in January 2025 and it subsequently decided to issue Y with an EHC Plan. It issued the final EHC Plan in March 2025 which was a delay of 10 months outside of statutory timescales.
15. Ms X remained dissatisfied with the Council’s handling of the matter and complained to us.

Council’s response to our enquiries

16. The Council said it has an EP backlog recovery plan in place, outlined as follows:
• In November 2024, the Council commissioned 200 assessments to help clear the backlog. It completed 35 assessments a month for six months to stagger the work and stop it becoming unmanageable.
• The Council commissioned further assessments to be completed which was out for tender until January 2025 and commenced in March 2025. 40 assessments were completed per month for the first three months then reducing to 35 assessments per month after that.
• The Council proposed it would clear the backlog by June 2025 and the Council could focus on new assessments.

My findings

17. Following Ms 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 April 2024 and then issued the final Plan by May 2024.
18. The EP advice should have been available to the Council by March 2024 in order for it to have met the May deadline. It did not receive the EP report until January 2025 which was fault and delayed the Council making the decision whether to issue an EHC Plan. This caused the final EHC Plan to be issued 10 months outside of statutory timescales. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases. This caused Ms X distress, frustration and uncertainty about the provision Y would receive.
19. We have found similar fault with the Council on a separate case. Following that case, it agreed to create and provide us with an action plan addressing its EP shortages. Therefore, it does not require a further service improvement.

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Action

20. Within one month of the final decision the Council has agreed to take the following action:
1. Apologise to Ms X to recognise the distress, frustration and uncertainty the delays caused her. 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 Ms X £1000 to recognise the distress, frustration and uncertainty caused by the 10 month delay in issuing Y’s EHC Plan due to a shortage of EPs. 
21. The Council should provide us with evidence it has complied with the above actions.

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Decision

22. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman