Summary: The Council has failed to complete an Education Health and Care (EHC) needs assessment and tell Mr X whether it will proceed to an EHC Plan for his daughter. The Council’s decision is ten months overdue. This has caused Mr X distress and left him uncertain that his daughter is getting the help she needs at school. The Council should complete the assessment and make its decisions without further delay. It should also make a symbolic payment to Mr X in recognition of the impact on him and his daughter.

The complaint

1. Mr X complains that the Council has failed to complete an Education Health and Care (EHC) Plan within the legal time limits.
2. Mr X says that as a result of the Council’s shortcomings, his daughter has not received the support she needs in school and she has started to refuse to go.

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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(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
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 found

The law and guidance

8. 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. 
9. There is a right of appeal to the Tribunal against a council’s decision not to carry out an EHC needs assessment. A council can conceded the appeal. If it does so then it must complete the EHC needs assessment and decide whether it needs to issue an EHC Plan. If the Council decides it should not issue the Plan, the Council must write to the parent within 10 weeks of conceding the appeal. If the Council decides should issue a Plan, it should do so within 14 weeks of conceding the appeal.
10. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

What happened

11. Mr X’s daughter is at primary school and she has special educational needs. Mr X asked the Council to complete an EHC needs assessment for his daughter. The Council refused this request and Mr X appealed to the Tribunal. The Council conceded the appeal on 7 November 2024. This means it should have told Mr X that it would not issue an EHC Plan by 17 January 2025, or if it decides to proceed with a Plan, it should issue a final EHC Plan by 14 February 2025.
12. At the end of February, Mr X complained to the Council because it had not completed its EHC needs assessment. The Council upheld his complaint. It said it had not started the process due to a miscommunication within the Council. It said it would complete the EHC Plan process as soon as possible. The Council apologised for the delay and that it had not kept in contact with Mr X.
13. By 24 April, Mr X had received no further contact from the Council, and so he complained again. He asked the Council to consider his complaint at stage two of its complaints process. The Council told him that it could not do so because he had not sent any new evidence. However, it would contact him about the EHC Plan.
14. By law, the Council needs an Educational Psychologist’s assessment before it can decide whether to issue an EHC Plan. An Educational Psychologist did not assess Mr X’s daughter until 17 October 2025. Mr X says the psychologist said his daughter needs a key worker to support her in the classroom. Mr X says that there is no teaching assistant in his daughter’s classroom and so she is falling behind, and more frequently, she is unable to stay in the classroom as she is overwhelmed.
15. Mr X says he has had no information from the Council about what should happen next and it still has not told him whether it will issue an EHC Plan.

Is there fault by the Council causing injustice to Mr X and his daughter?

16. There is fault by the Council. It should have completed the EHC needs assessment by 17 January 2025, and notified Mr X if it decided not to proceed with an EHC Plan. The Council has not done so and this decision is now 10 months overdue.
17. The Council has explained the initial delay was due to an oversight so that after conceding the appeal, the Council did not progress the assessment. This was fault by the Council.
18. It then took from March to October 2025 for an Educational Psychologist to assess the child’s needs. The EHC process cannot proceed without this assessment. The Ombudsman is aware that there is a national shortage of Educational Psychologists and this is causing delays in the EHC Plan process. However, even if the Council did all it could to facilitate an assessment, it failed to do so and this is fault.
19. The Council also failed to keep Mr X informed of what is happening and what he can expect. The Council’s poor communication has continued despite already upholding Mr X’s complaint about this in February 2025.
20. The continued delay and the poor communication has caused Mr X distress and uncertainty as to whether his child is getting the help she needs in school.
21. The Council agreed with the Ombudsman as part of our investigation of a separate complaint that it would review the capacity of its EHC team to identify the action it needs to take to ensure the process is completed on time, and that it communicates with parents at appropriate intervals during the process.
22. The Council has told the Ombudsman that it has recently fully restructured its Special Educational Need and Disability team with increased staffing and resources. The Council says it has also invested significantly in SEND early years support. The new team and resources should improve the service, but I recognise that this will take time. For this reason, I have not recommended that the Council take further action to improve its service.

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Action

23. The Council will either notify Mr X that it will not proceed with an EHC Plan, or issue the draft Plan and then final Plan without delay.
24. The Council has agreed that within one month of the date of this decision, it will:
• Apologise to Mr X for the distress and uncertainty its failings have caused him. 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.
• Make a symbolic payment to Mr X of £1,000 in recognition of the impact on him of the Council’s delays and poor communication. This is calculated as £300 in respect of the failure to move the assessment forward from January to March 2025, and then £100pcm when the Council could not arrange an Educational Psychologist from March to November 2025. This is in line with the Ombudsman’s guidance.
25. The Council will continue to pay Mr X £100 every month or part thereof from December until it either notifies Mr X that it will not proceed to an EHC Plan, or until it issues the final EHC Plan. Either of these decisions will give Mr X the right to appeal if he needs to.
26. These ongoing payments will continue for a maximum of six months (so until June 2026), and if the Council has not issued its decision or a final Plan by then, Mr X can make a fresh complaint to the Ombudsman about this ongoing delay.
27. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman