Summary: There was delay issuing Y’s Education, Health and Care Plan which caused avoidable uncertainty and missed educational provision. The Council will apologise and make payments to reflect the injustice. The Council will provide us with evidence it has resolved the systemic delay in obtaining Educational Psychology advice across the service.

The complaint

1. Ms X complained about delays in the process of issuing her son Y’s Education, Health and Care (EHC) Plan. She also complained about poor communication.
2. Ms X said this caused avoidable distress and a loss of special educational provision.

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The Ombudsman’s role and powers

3. 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. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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)
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(1), 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. Ms X’s complaint is about events between August 2023 and March 2025. She complained to us in March 2025. So March 2024 to March 2025 is not a late period. August 2023 to February 2024 is late, but I have investigated because Ms X has a disability affecting communication that made it more difficult for her to complaint to us on time. This is a good reason for her delay.

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How I considered this complaint

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

Law and guidance

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 including Section I, which has the name of the school the child is to attend.

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 Code is based on the Children and Families Act 2014 and the SEND 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 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);
• 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 consult with the parent or young person’s preferred educational placement who must respond with 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). Those consulted have a maximum of six weeks to provide the advice. 
14. The High Court said the 20-week timescale for issuing an EHC Plan is not affected if a parent appeals a decision not to assess which is conceded by the local authority. The judge said the primary duty on the local authority is to complete a finalised EHC Plan as soon as possible, however an outer limit is set for the period within which it has to be completed. This outer limit is 20 weeks from the date of the request being made, not the date when it agrees to undertake the assessment.

(W, R (oao) v Hertfordshire County Council [2023] EWHC 3138 (Admin) (8 December 2023))

What happened

2023

15. Ms X requested an EHC needs assessment for Y on 8 August 2023. The Council refused on 29 September.
16. Ms X told me the Council reconsidered its decision not to carry out an EHC needs assessment the day before mediation was due to take place. So she did not appeal the decision not to assess.
17. The Council issued a decision to assess Y on 8 March 2024. On the same day it referred Y to its EP service.

2024

18. Ms X’s complaint to the Council in the middle of September. The EP issued their advice on 8 October.
19. The Council responded to Ms X’s complaint at stage one. It said:
• The EP report and other advice requested as part of the EHC needs assessment should have been received by 19 April 2024.
• The EP report was delayed due to high demand on the EP service. It was sorry for this. Y had now had an EP assessment and their report was available and was being quality checked. This would take four weeks. The report would then go to the decision-making panel and the caseworker would update her.
20. Ms X and Council officers exchanged emails between September and November 2024. Ms X was chasing progress for the EP advice. The caseworker said the advice was being checked, needed to be amended and would be put to the decision-making panel.
21. The Council decided to issue an EHC Plan for Y on 12 December 2024. There is an internal record of the decision-making panel. There is no evidence the Council issued Ms X with a written decision.

2025

22. Ms X complained to the Council again in January 2025. By this time she had just received a copy of the EP advice. But she was still waiting for the draft and final EHC Plans.
23. The Council issued a draft EHC Plan just after Ms X’s complaint. Ms X provided comments the following day and gave the Council three schools that she was interested in for Y. There is no evidence the Council consulted with those schools in response to Ms X’s request.
24. The Council responded to Ms X’s complaint at the start of March. The Council upheld her complaint about poor communication and apologised. It said this was due to staff absences and a final EHC Plan would be issued within two weeks. Ms X escalated her complaint to stage two the same day.
25. The Council issued Y’s final EHC Plan on 13 March 2025. It names the mainstream secondary school he was already attending. Section F has 30 hours a week of special educational provision to be delivered individually and within a small group.
26. The Council’s stage two response (also in March) said the Council had upheld her complaint said Y’s EHC Plan had been issued, with 30 hours a week of support and she could appeal to the SEND Tribunal.
27. Ms X complained to the LGSCO shortly after receiving the Council’s final complaint response.
28. The Council told us it has a recruitment plan for EPs implemented in March 2025 which meant there would be very little wait for EP advice after Summer 2025.

Was there fault?

29. There was fault by the Council:
1. It should have issued Y’s final EHC Plan no later than 26 December 2023 to be within the 20-week timeframe in law and statutory guidance. It did not issue a final Plan until 13 March 2025: a 15-month delay. The legal case in paragraph 13 is relevant, although not identical as Ms X’s case did not involve an appeal. However, the judge made it clear that the outer time limit for the process of issuing an EHC Plan is 20 weeks from the date of the request.
2. There was a delay of several months in issuing a decision to assess letter after mediation
3. The EP’s advice should have been issued on 19 April 2024 to meet the six-week time limit. It was not available until 8 October: a six-month delay.
4. There was further drift between October 2024 and January 2025 in the internal quality checks for the EP’s advice. This in turn caused delay issuing Y’s draft EHC Plan, which was not sent to Ms X until the start of January 2025.
5. The Council did not consult with the three schools Ms X requested when she commented on the draft EHC Plan.
6. Our view is that a timescale of six to eight weeks is reasonable to complete the process once an EP advice is issued. Y’s final Plan could and should have been available by the beginning of December 2023. It was not issued until the middle of March 2025. A further delay of three and a half months.

Injustice

30. The Council should have issued Y’s final Plan by 26 December 2023 to meet the legal timeframe. It did not issue EP advice till 8 October 2024. The delay of nine months is avoidable uncertainty about the nature of special educational provision required to meet Y’s special educational needs
31. Once the EP advice was available, the Council should have issued a final Plan within six to eight weeks, so by December 2024. This further delay of three months (or a school term) is a loss of educational provision.

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Agreed Action

32. Within one month of the final decision, the Council will issue:
1. An apology for the avoidable frustration and uncertainty. 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 in my findings.
2. A payment of £900 (£100 a month) to reflect the uncertainty caused by the delay set out in paragraph 30.
3. A payment of £1500 to reflect Y’s loss of opportunity to receive provision in line with their EHC Plan between December 2024 and March 2025. I have taken into account Y was in Year 9, not an exam period and Y’s SEN and provision. This is in the lower to mid-point of our published Guidance on Remedies for loss of educational provision.
33. The Council will also provide us with monthly figures for EP advice requests and response times for the first three quarters of 2025. This is so we can be satisfied it has taken the necessary action to prevent recurrence in other cases.
34. The Council should provide us with evidence it has complied with the actions in paragraphs 32 and 33.

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Decision

35. I find fault causing injustice. The Council has agreed action to remedy the injustice

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Investigator's decision on behalf of the Ombudsman