Summary: Mrs X complained about the Council’s delay in assessing her child’s special educational needs and issuing an Education, Health and Care Plan. We found avoidable delay by the Council. The Council, which had already apologised, agreed to make a symbolic payment to Mrs X in recognition of the avoidable distress caused by its delay.

The complaint

1. Mrs X said the Council avoidably delayed assessing her child (C) and issuing their Education Health and Care Plan (EHC Plan). Mrs X said the delay caused unnecessary stress and led to avoidable costs, which the Council should pay. Mrs X also wanted the Council to review its procedures for assessing needs and preparing EHC Plans.

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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. (See the Local Government Act 1974, sections 26(1) and 26A(1), as amended.)
3. Service failure can happen when a council 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 a council to say service failure (fault) has occurred. (See the Local Government Act 1974, sections 26(1), as amended.)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (See the Local Government Act 1974, sections 26B and 34D, as amended.)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. And we cannot normally investigate if they have, but did not use, their tribunal appeal rights. However, we may decide to investigate if we consider it would be unreasonable to expect them to use their appeal rights. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
8. If we are satisfied with a council’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)
9. 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

10. Mrs X complained to us more than two years after the Council first refused to assess C’s education, health and care needs. And more than 15 months had passed since the Council had, later, agreed to assess C, with about seven of those months being after it issued C’s final EHC Plan. So, parts of the complaint were late (see paragraph 4 of this statement).
11. Mrs X’s complaint included concerns about the Council’s initial refusals to carry out an education, health and care needs assessment for C. Mrs X had the right to appeal to the Tribunal against the Council’s refusals to assess. We normally expect people to use their appeal rights. The evidence showed the Council told Mrs X about her appeal rights. And, Mrs X took steps to challenge the Council’s second refusal to assess. (See paragraphs 5 and 6.)
12. I carefully considered the available information and circumstances of Mrs X’s complaint. I found no good grounds to exercise my discretion and investigate the complaint back two years. I also found no good reason to exercise any discretion to investigate the Council’s two decisions to refuse C an assessment, both of which carried appeal rights to the Tribunal. However, I exercised my discretion to investigate the Council’s actions over the approximate 15 months between its decision to assess C and our receipt of Mrs X’s complaint.

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How I considered this complaint

13. I considered evidence provided by Mrs X and the Council. I also considered relevant law, policy and guidance. This included the Special Educational Needs and Disability Regulations 2014 (the SEND Regulations). It also included the Government’s statutory guidance, the ‘special educational needs and disability code of practice: 0 to 25 years’ (the Code). I gave Mrs X and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Background

Special educational needs

14. A child with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. 
15. The Code sets out the procedure for carrying out EHC needs assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEND Regulations. It says: 

• 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 within six weeks; 
• 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 assesses a child, it must decide either to issue or refuse to issue an EHC Plan within 16 weeks; and
• if the council issues an EHC Plan, the procedure from asking for an assessment until issue of the final EHC Plan must take no more than 20 weeks (unless certain specific circumstances apply).

16. When assessing a child, the council must gather advice from relevant professionals (see regulation 6(1) of the SEND Regulations), including from:

• the child’s educational placement; 
• psychological advice and information from an Educational Psychologist (EP); 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. 

What happened

17. Following a change of circumstances, Mrs X asked the Council to assess C’s education, health and care needs. Mrs X also started to fund added one to one (1:1) support for C at their independent school (the School). The School invoiced Mrs X for the 1:1 support for the remainder of that academic year and, later, in advance for the next academic year.
18. After about a year, the Council had twice refused to assess C’s needs and Mrs X had taken steps to challenge the second refusal at the Tribunal. The Council, referencing further evidence, then said it would assess C. (Mrs X disputes that further evidence was given to the Council. However, I was satisfied, on balance of probability, the Council received further and or updated information after its second refusal to assess C.)
19. The Council issued a draft EHC Plan about four months after telling Mrs X it would assess C. Mrs X said the School did not seek further payments for C’s 1:1 support after the issue of C’s draft EHC Plan.
20. It took a further three months to issue C’s final EHC Plan. (Mrs X said the delay between the draft and final EHC Plans arose mainly from the Council’s failure to communicate with her and the School about payment of tuition fees and travel costs.)
21. About two months later, Mrs X complained to the Council about its handling of C’s case, including its unnecessary delays in assessing C and issuing the final EHC Plan. Mrs X also referred to the significant costs she had incurred in funding 1:1 support for C before it issued the draft and final EHC Plans.
22. The Council’s response to the complaint, in summary, was that it had told Mrs X about her right to appeal to the Tribunal when it refused to assess C. And, it had assessed C based on evidence received after Mrs X acted to challenge its second refusal to assess C. It apologised for its delay in issuing a final EHC Plan explaining it was facing increasing demand for assessments and EHC Plans. The Council also said it had identified a new school placement for C but Mrs X expressed a preference for C to remain at the School. Once Mrs X confirmed she would continue to pay the School’s tuition fees and C’s school travel costs, it had issued the final EHC Plan naming the School. It had not agreed to fund 1:1 support for C and was not responsible for the costs Mrs X had incurred in doing so. Its responsibility for funding C’s special educational needs started on issue of the final EHC Plan.

Consideration

23. On deciding to assess C, the Council sought relevant advice, including from an EP. While it received most responses around six weeks later, the EP advice took about thirteen weeks.
24. The Council then decided to prepare a draft EHC Plan for C, which it issued about six weeks later. The Council then realised that, while consulted, it had not received advice from an occupational therapist. After contacting the therapist, the Council issued a further draft EHC Plan about a week later.
25. Mrs X responded quickly, accepting the draft EHC Plan. The School also responded to the Council’s consultation about it being named as the educational placement in C’s EHC Plan.
26. The evidence showed little further action by the Council until, about two months later, the School asked for an update. The Council then consulted various schools to see if they would offer C a place. It also asked Mrs X if she would continue to fund C’s place at the School. Mrs X replied the same day confirming she would pay the School’s tuition fees and C’s travel costs to and from the School. About two weeks later, the Council issued C’s final EHC Plan, naming the School.
27. If the Council had met legal timescales for completing an assessment and issuing any resulting final EHC Plan, it would have issued C’s final Plan nearly eighteen weeks earlier than it did. In responding to Mrs X’s complaint, the Council accepted there had been delay, including the receipt of the EP’s advice. It also referred to the increasing local and national demand for assessments and limited EP capacity. The Council said it had a high EP retention rate but had had to use agency staff to cover some vacancies. The Council also said, by July 2025, service delays had decreased and it had no cases awaiting allocation to an EP.
28. We are aware of the national EP shortage. If we are satisfied a council has put measures in place to mitigate the impact of that shortage on its services, we consider delay attributable to the lack of EP advice as service failure (see paragraphs 2 and 3). Here, the Council was implementing a 2024 action plan, which aimed to improve its assessment and EHC Plan service. Under the action plan the Council had restructured its service, increased the budget and staffing, and improved its use of computer software. I was satisfied the Council was working to improve its assessment and EHC Plan procedures, including addressing the impact of EP shortages on its service. I therefore found the delay in securing an EP’s advice in C’s case a service failure (see paragraph 3).
29. I recognised that, like many local education authorities, the Council faced increasing demands for assessments and EHC Plans. However, the law sets timescales for assessing needs and issuing any final EHC Plan. And, having received delayed EP advice, we normally consider, subject to case circumstances, councils should need no more than eight weeks to then issue any draft and final EHC Plans. Here, following the EP’s advice, it took the Council nearly six weeks to issue C’s draft EHC Plan, which then gave Mrs X two weeks to comment. Despite Mrs X, and the School, responding within the two weeks, the Council took about another 10 weeks to complete the procedure and issue C’s final EHC Plan. I found further avoidable delay by the Council after receipt of the EP’s advice, which was fault (see paragraph 2).
30. The faults identified at paragraphs 28 and 29 likely caused Mrs X avoidable distress and frustration, which was injustice. Mrs X also pointed to the costs she had incurred in securing 1:1 support for C.
31. I recognised Mrs X considered the Council should reimburse these costs. But the Council did not at first know Mrs X was paying for 1:1 support. Mrs X said the second request for an assessment included information about the 1:1 support and its funding. The Council gave a date about two months later, and after Mrs X acted to challenge its second refusal to assess C, for when it became aware Mrs X was funding 1:1 support. Regardless of precisely when the Council first knew, I saw no evidence the Council then considered C needed such 1:1 support or agreed to meet its cost. And, the further avoidable delay I found after the EP related service failure, arose after Mrs X stopped funding 1:1 support on issue of the draft EHC Plan. I therefore could not find costs incurred by Mrs X for 1:1 support were caused by the avoidable delay after receipt of the EP’s advice.

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Action

32. Having found fault causing injustice, I considered our guidance on remedies. The Council had issued C’s final EHC Plan and so there was no need to recommend actions to complete C’s assessment. The Council had also apologised for its delay. However, I considered these steps had not addressed the injustice in a proportionate, appropriate and reasonable manner. The Council therefore agreed (within 30 working days of this decision statement) to make a symbolic payment of £500 to Mrs X in recognition of the avoidable distress caused by its avoidable delays.
33. The Council also agreed to provide us with evidence of its compliance with the action set out in paragraph 32.
34. I was satisfied the Council, through its action plan, was improving its assessment and EHC Plan service (see paragraph 28). I therefore found no need, at this point, to recommend further service improvements.

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Decision

35. I found fault causing injustice. The Council agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman