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 also complained of poor communication from the Council. We found the Council at fault for not completing the assessment within the statutory timescales and for its poor communication. This fault caused injustice to Miss X. The Council has agreed to make a payment to recognise Miss X’s distress and make changes to improve its service.

The complaint

1. Miss X complained about delay and poor communication in the Education, Health and Care (EHC) needs assessment process for her child, Y.
2. Miss X worried the delays caused Y to miss out on a school place and said the Council’s actions caused stress and uncertainty for Y and their family.

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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 May 2024 until the point the Council issued a final EHC Plan in February 2025.

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How I considered this complaint

9. I considered evidence provided by Miss X and the Council, and 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.
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 whole process from the point when an assessment is requested until the final EHC Plan is issued (if applicable) must take no more than 20 weeks (unless certain specific circumstances apply).
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• the council must then consult with the parent or young person’s preferred educational placement, who should respond within 15 calendar days.

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).
14. The Code also states local authorities must:

• have regard to the importance of the child or young person, and the child’s parents, participating as fully as possible in decisions, and being provided with the information and support necessary to enable participation in those decisions; and,
• ensure the child’s parents or the young person are fully included in the EHC needs assessment process from the start, and are fully aware of their opportunities to offer views and information.

15. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs, such as the school named in an EHC Plan. We refer to it as the Tribunal in this decision statement.

What happened

16. In May 2024 Miss X asked the Council to conduct an EHC needs assessment for Y. Y was due to start primary school in September 2025.
17. In the second week of December an EP prepared her statutory advice for Y.
18. In December 2024 Miss X complained to the Council about poor communication during the EHC needs assessment process.
19. In its response to Miss X’s complaint, the Council explained its communication policy requires staff to aim to respond to all queries within three working days. It accepted staff had not always responded to her within three working days but said they had responded to her broadly in-line with this. The Council did not uphold Miss X’s complaint.
20. In mid-January, the Council told Miss X it had issued a draft EHC Plan for Y and this was available for her to view on an online portal.
21. Miss X then complained again to the Council. She said she was still experiencing slow response times from staff. She said the Council told her it would post Y’s draft EHC Plan to her, but it had not done this.
22. Miss X also raised concerns about the Council’s delay in consulting with her preferred school for Y, as part of the EHC Plan process. She did not understand why this had not happened.
23. In late January 2025 the Council sent its final response to Miss X. It upheld her complaint about poor communication. It accepted it had not fully explained to her how school consultations work, and there had been delays in responses from staff. The Council told her it had posted the draft EHC Plan in mid-January, but it was aware of delays within the postal service, and this may be why she hadn’t received it yet. It asked her to contact it about this if she had not received it by mid-February.
24. The Council also accepted that it had failed to meet the 20-week deadline to send Y’s final EHC Plan. It explained it was experiencing capacity issues, which it had tried to reduce by increasing its Educational Psychology team.
25. The Council told Miss X it accepted the delay could cause Y to miss out on a place at Miss X’s preferred primary school. It told her it would discuss all cases of children with an EHC Plan moving to primary school in September 2025 and allocate them a primary school place by 15 February 2025. It said, even though Y did not yet have an EHC Plan, it would include Y’s case in these discussions about primary school placements. It said this meant Y would be less likely to miss out on a school place because of their delayed EHC Plan.
26. The Council sent Y’s final EHC Plan near the end of February 2025. The EHC Plan did not name Miss X’s preferred primary school for September 2025. Miss X appealed to the Tribunal about the school named in Y’s EHC Plan.

Analysis

EHC Plan delays

27. The Council sent Y’s final EHC Plan in February 2025, when it should have sent it at the beginning of October 2024. This was a delay of nearly five months.
28. In the Council’s final complaint response to Miss X, it explained to her it was having issues completing EHC needs assessments on time due to the demands on its EP service.
29. There is a reported national shortage of EPs. In response to our enquiries, the Council shared with us its plan to reduce delays in EHC needs assessments caused by the EP shortages. This includes recruiting and training new EPs.
30. I am satisfied the delay in Y’s EHC Plan was mostly caused by the shortage of EPs. Although the Council has tried reducing 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 it service failure.
31. I accept the Council tried to reduce the impact of the delays on Y being allocated a preferred school place by moving their case forward for discussion for a primary school place.
32. I cannot say even on the balance of probabilities if, but for the delay, Y would have received a placement at Miss X’s preferred school. However, I am satisfied Miss X experienced avoidable distress and uncertainty about which school Y would go to in September 2025 during this period. The delay to finalising the EHC Plan also frustrated Miss X’s right to appeal the school named, which likely would have further increased her distress and uncertainty.

Communication

33. The Council frequently failed to respond to Miss X’s correspondence or delayed its responses. Miss X continued contacting the Council and was increasingly frustrated by the lack of communication.
34. The Council told us it does not have a specific process in place to explain to parents and young people:

• how they should apply for a school place if they are awaiting the outcome of an EHC needs assessment; and,
• how receiving an EHC Plan may then change the way they ask for a school placement.

35. The Council’s failings specified above are fault. They caused injustice to Miss X as they added to her uncertainty about which primary school Y would attend. Miss X did not receive responses to some of her questions, which left her unclear about the process.
36. The Code states that children and their parents should be given the information they need to be able to participate in decisions and be involved in the EHC Plan process. From the information I have seen, Miss X was not fully informed about the process and was not given information in a timely manner, which caused her worry and distress.
37. I cannot say, even on the balance of probabilities, whether the Council posted the draft EHC Plan to Miss X as requested. In response to our enquiries, the Council sent us an electronic copy of the letter it said it had posted, but not proof of postage. Therefore, I cannot say if it was because of fault in the Council’s actions that Miss X did not receive a hard copy of Y’s EHC Plan.

Service improvements

38. As explained above, the Council has already shared with us its action plan to reduce delays to the EHC Plan process caused by EP shortages and the impact of the changes it has made. The steps the Council is taking to reduce delays appear proportionate.
39. The Council has apologised to Miss X for delays in communication and has sent us evidence that it has reminded all staff of its communication policy. It explained it was having staff capacity issues which contributed to delays in response times but has told us it is back to normal staffing levels now. I am satisfied the Council’s actions are likely to improve its communication response times. We will be monitoring the effectiveness of the Council’s actions through our casework.

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Action

40. Within one month of the final decision the Council will make a payment of £700 to Miss X to acknowledge her avoidable distress caused by the Council’s delays to the final EHC Plan and the Council’s failing to communicate with her effectively.
41. To improve its services, within three months of the final decision the Council will amend its webpages regarding applying for a primary or secondary school place to explain:

• how parents should apply for a school place whilst still awaiting the outcome of an EHC needs assessment; and,
• how this process may change if the Council later decides to issue their child with an EHC Plan.

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

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Decision

43. I find fault causing injustice. I have recommended actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman