Summary: Mrs X complained the Council failed to adhere to the statutory timescales for the Education, Health and Care needs assessment process for her child, Y. The Council’s delay to complete the statutory process is service failure. The Council has agreed to apologise and make a symbolic payment to acknowledge the frustration and uncertainty its service failure had and continues to cause Mrs X.

The complaint

1. Mrs X complained about the Council’s delay in completing her child’s Education, Health and Care (EHC) needs assessment process. The delay included the Council’s failure to secure an Educational Psychologist’s report for the assessment.
2. Mrs X wants the Council to complete the EHC needs assessment for Y.

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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. 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) (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

6. I have investigated Mrs X’s complaint from July 2024 until April 2025. From the EHC needs assessment request to the Council’s complaint response.
7. I have not investigated any matters after April 2025. This is because this was not part of her original complaint, and the Council has not had the opportunity to address these concerns through its complaints process.

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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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

Relevant law and guidance

Education, Health, and Care needs assessments

11. 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.
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
• 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.
• 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).

What happened

12. Mrs X’s child, Y, has special educational needs (SEN) which impacts their ability to receive an education.
13. In July 2024 Y’s school asked the Council to complete an EHC needs assessment for them. The Council agreed to the request in September 2024.
14. In March 2025 Miss X complained to the Council. She said:
• she was still waiting for an EHC needs assessment to be carried out for Y who had SEN diagnosis.
• Y’s school and an alternative provision provider, which was due to end in April 2025, were doing all they could to support Y without an EHC Plan.
15. In response the Council accepted it had failed to adhere to the statutory timescales to complete Y’s EHC needs assessment. It explained this was due to its challenges to recruit and retain the educational psychologist necessary to complete the process. It explained the steps it is taking to address the delays.
16. The Council also said Y will continue to receive support as part of its ordinary offer during the delayed process. Further, should it be necessary to issue an EHC Plan, Y’s school would receive funding backdated to when a Plan should have been finalised.
17. Mrs X was not satisfied with the Council’s response and asked the Ombudsman to consider her complaint.

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Analysis

The EHC needs assessment process

18. The Council has accepted it has failed to adhere to the statutory timescales to complete the EHC needs assessment process for Y. This is due to its challenges in retaining and recruiting educational psychologists and a high demand on its services.
19. The Council’s failure to complete Y’s EHC needs assessment is service failure causing uncertainty and frustration to Mrs X.
20. In line with our Guidance on Remedies, a symbolic payment is therefore appropriate. This is an ongoing remedy for up to six months after the date of my decision until the Council has completed Y’s needs assessment, and if appropriate issued a final EHC Plan. If the Council has still not completed its assessment Mrs X can return to the Ombudsman with a new complaint.
21. The symbolic payment is not to remedy any loss of special educational needs support as Y does not yet have an EHC Plan.
22. The Council has an action plan in place to mitigate the impact and address the challenges of the educational psychologists. We have as part of previous investigation and recommendations found its action plan to be appropriate to address the challenges the Council is experiencing. I have therefore not made any further service improvement recommendations.

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Action

23. To remedy the injustice the Council caused to Mrs X, the Council has agreed to, within one month of the final decision:
• apologise in writing to Mrs X to acknowledge the injustice its service failure caused and continues to cause. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended in my findings.

Pay Mrs X £100 per month of delay in the statutory process, to be calculated as below:

• from the November 2024 (10 weeks after agreement to assess) until it decides not to issue an EHC Plan for Y; or
• from the December 2024 (14 weeks after agreement to assess) until it issues a final EHC Plan for Y.
2. The Council will calculate and pay the remedy to Mrs X within one week of making the decision not to issue or sending her the final EHC Plan. This is an ongoing remedy for up to six months after the date of my decision. If the Council has still not completed its assessment Mrs X can return to the Ombudsman with a new complaint.
3. The Council will provide us with evidence it has complied with the above actions.

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Decision

26. I found the Council at fault causing injustice caused by delays in the Education, Health and Care needs assessment process. The Council has agreed to the recommendations to remedy the injustice; it is on that basis I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman