Summary: Mrs X complained the Council did not issue an Education Health and Care Plan within the statutory time frame. She says this impacted her child’s education and emotional wellbeing. We find the Council at fault which caused injustice. The Council has agreed to make a payment to Mrs X to remedy the injustice.

The complaint

1. Mrs X complains the Council:

1. did not issue an Education Health and Care (EHC) Plan within the statutory time frame; and
2. did not commission a suitable Occupational Therapy assessment for her child.

2. Mrs X says this impacted her child’s education and emotional wellbeing. She says it has also impacted her ability to work.

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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. 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.

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What I have and have not investigated

8. Mrs X complains about the Council’s decision not to commission an Occupational Therapy report for B to inform their EHC Plan. This matter could be considered by the Tribunal. As I have said above, the law says the Ombudsman cannot normally investigate when the complainant has a right of appeal to a tribunal about the same matter. I consider it is reasonable for Mrs X to use her right to appeal to the Tribunal. For this reason, I will not investigate part b of the complaint.
9. I have only investigated part a of the complaint.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs X and the Council had an opportunity to comment on a draft of this decision. I considered all comments received before making this final decision.
12. 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 found

What should have happened

13. 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.
14. 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: 

• 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. 
• 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.
• As part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist (EP) and from health care professionals involved with the child or young person. Those consulted have six weeks to provide the advice.
• 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.

What happened

15. In late October 2024, the Council received a request for an EHC needs assessment for Mrs X’s child, B.
16. In mid-December, the Council accepted the request for an EHC needs assessment.
17. In February 2025, the Council appointed an Educational Psychologist (EP) to assess B. Mrs X made a formal complaint about the Council’s delay in completing B’s EHC needs assessment. The Council apologised for its delay and told Mrs X its was due to staffing issues and the national shortage of EPs.
18. In March, the EP completed their assessment.
19. In early April, the Council decided it would issue an EHC Plan for B.
20. In early June, the Council issued B’s draft EHC Plan.
21. In May, an Occupational Therapy (OT) observation was commissioned by B’s school. The summary said B required weekly OT sessions with for one academic half term.
22. In late June, the Council issued B’s final EHC Plan. It referred to the OT observation completed in May. It included provision for weekly OT sessions for one academic half term.

Analysis

23. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The request for an assessment for B was made in October 2024 and the Council made its decision to assess in mid-December. This took seven weeks. The timescale says the Council should provide the decision to the parent within six weeks. I do not find a one week delay significant enough to make a finding of fault.
24. The process from a request for an EHC assessment to the Council issuing a final Plan should take a maximum of 20 weeks. The Council should have issued B’s final Plan by early March. Once the Council received EP advice in March 2025, it made its decision quickly to provide B an EHC Plan, which is good practice. However, it took almost four months to issue its final Plan. This is fault and caused Mrs X injustice by avoidable and unnecessary uncertainty and delayed her right to appeal by four months.
25. I do not consider the Council’s delay issuing its final EHC Plan caused B to lose OT provision. This is because the OT observation was commissioned by the school after the statutory deadline for EHC Plan. Therefore, if the Council had completed its EHC Plan within the statutory timeframe, it would have completed it without information from the OT observation summary.
26. The Council apologised to Ms X for the delay in issuing B’s Plan. I am satisfied the Council’s apology met the standards in our published guidance on remedies.
27. The Council told Ms X the delay was due to staffing issues and the shortage of EPs. The Council has recently told the Ombudsman about the actions it is taking to meet the increased demand of the EHC assessments and improve its SEND service in relation to other cases. Therefore, I am not making service improvement recommendations in this case.

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Action

28. Within four weeks of my final decision, the Council has agreed to make a payment of £250 to Mrs X to remedy the avoidable and unnecessary uncertainty and delay to her right of appeal caused by the four-month delay in the Council issuing B’s final EHC Plan. In arriving at this figure, I considered our published guidance on remedies. I consider this amount is appropriate and proportionate to the level of injustice caused.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. 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