Summary: Miss X complained the Council failed to complete an Education, Health and Care needs assessment for her child, Y, within the statutory time limits. She complained the Council’s offer of a symbolic financial payment was not enough to remedy the injustice caused to her. We found the Council at fault for not completing the assessment within the statutory timescales. This fault caused injustice to Miss X. The Council has agreed to make a higher payment to recognise Miss X’s distress and make changes to improve its service.

The complaint

1. Miss X complained about delay in the Education, Health and Care (EHC) needs assessment process for her child, Y.
2. Miss X said this delay caused her stress and frustration and caused Y to miss out on provision they needed.

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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. 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.
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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What I have and have not investigated

8. I have considered Miss X’s complaint from the request for an EHC needs assessment in October 2023 until the point the Council issued a final EHC Plan in January 2025.

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How I considered this complaint

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

EHC needs assessments and plans

11. 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. 
12. 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: 

• 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.
• 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).  

13. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).

What happened

14. In the autumn of 2023 Y’s school was providing individual support for them from a higher level teaching assistant three times a week as well as additional support from their class teacher and a teaching assistant either individually or in small groups. In March 2023 an EP advised on Y’s needs and support arrangements they needed. The school held an Individual Support Plan for them. Despite these arrangements Y was working significantly below age expected levels.
15. In October 2023 Miss X asked the Council to conduct an EHC needs assessment for Y. In November 2023 the Council agreed to assess Y.
16. A year later an EP provided advice for Y’s EHC needs assessment.
17. In December 2024 Miss X complained to the Council that it had not yet issued the draft EHC Plan. She was worried about Y not getting the right support in the meantime. She also complained about poor communication from the Council. She said she was not told when Y’s caseworker changed on two occasions.
18. Miss X also complained the Council did not respond to her when she asked if it would use an existing EP report for the assessment, instead of asking for a new one.
19. The Council responded to Miss X’s complaint. It apologised for the delays. It explained the delays were linked to EP shortages which had caused a backlog of assessments. It did not clearly address her query about the EP reports.
20. The Council explained it had told Y’s school how to claim extra funding if it needed this to provide them with support during the delays.
21. The Council then issued Y’s final EHC Plan in January 2025.
22. After Miss X received Y’s final EHC Plan, she complained to the Council again. She said she felt her complaint was still not resolved.
23. The Council responded and said it would address any parts of her complaint it had not previously. It explained why it had to seek a new EP assessment, instead of using the old reports. It told her the previous EP assessment was more than 12 months old, so the advice in the reports may be out of date.
24. The Council did not uphold Miss X’s complaint that Y missed support whilst waiting for the final EHC Plan. It explained to her it told the school how to claim extra funding if it needed this to provide support to Y, but the school had not claimed this.
25. The Council then offered a symbolic financial payment of £300 to recognise the avoidable distress and time and trouble caused to Miss X by the delays in the EHC Plan process.
26. Miss X still did not think this was enough to remedy the injustice caused to her and complained to us.

Analysis

EHC Plan delay

27. The Council sent Y’s final EHC Plan in January 2025, when it should have sent it in February 2024. This was a delay of 11 months.
28. There is a reported national shortage of EPs. In response to our enquiries, the Council shared its plan with us to reduce delays in the EHC needs assessments caused by the EP shortages. This includes recruitment of EPs.
29. The Council also told us it is recruiting more staff and reorganising the SEND service.
30. I am satisfied the delays in Y’s EHC Plan were mostly caused by the shortage of EPs. On the evidence I have seen, the Council has taken appropriate action to prevent any further delays.
31. 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 four of this decision, we consider this to be service failure.
32. Any injustice caused to Y by the Council’s delays in issuing their EHC Plan was limited. The school held EP advice issued for them in 2023 with support recommendations. The school was already providing to them individual and small group support. The Council also told the school how to ask for more funding if it needed this to provide Y’s support.
33. However, I am satisfied the delays caused Miss X avoidable distress and uncertainty about what support Y would receive once the EP assessments were updated.

Communication

34. The Council failed to update Miss X when Y’s caseworker changed. The Council’s lack of communication and updates during EHC needs assessment caused extra frustration to Miss X.
35. It has already apologised to Miss X for this and told her it is reviewing its communication with parents and carers to ensure they are informed of changes in future.
36. It is my view the Council’s actions of an apology and reviewing its communication processes are appropriate remedies for any distress caused to Miss X by its poor communication and are likely to prevent this from happening to others in the future. We will be monitoring the effectiveness of the Council’s actions through our casework.

Record keeping

37. In response to our enquiries, the Council told us it did not have full records of Y’s case, due to staffing changes and staff not saving all communications to case files. Failure to keep accurate records is fault by the Council. As suggested in our guidance notes Principles of Good Administrative Practice keeping proper and appropriate records ensures councils are open and accountable. Adhering to this principle of good administrative practice will prevent the Council’s services from being affected by changes of staff.

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Action

38. The Council will, within one month of the final decision, make a payment of £1,100 to Miss X to acknowledge her avoidable distress caused by the Council’s delays to the final EHC Plan. This is instead of the payment of £300 offered by the Council.
39. To improve its services, the Council will, within three months of the final decision:

• remind all staff to record all significant case actions and communications on individual case files.
• share with us the outcome of its communication review mentioned in paragraph 35.

40. The Council should provide us with evidence it has complied with the above actions.

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Decision

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