Summary: Miss X complained the Council delayed completing an education, health and care needs assessment and in issuing a final education, health and care plan. There is evidence of delay. That caused Miss X distress, led to her going to time and trouble to chase the Council, caused her some uncertainty and delayed her appeal rights. An apology and payment to Miss X is satisfactory remedy.

The complaint

1. The complainant, Miss X, complained the Council:
• delayed completing an education, health and care needs assessment (EHC needs assessment) and in issuing a final education, health and care plan (EHC Plan);
• failed to ensure the educational psychology report was up to standard; and
• failed to consider the amendments she requested to the EHC Plan.
2. Miss X says she has experienced considerable stress, depression and uncertainty.

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The Ombudsman’s role and powers

3. 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)
4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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(i), 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. I have investigated Miss X’s concerns about the delay completing the EHC needs assessment and in issuing a final EHC Plan.
9. I have not investigated Miss X’s concerns about the content of the educational psychology report or her concerns about the Council not including her amendments in the final EHC Plan. That is because Miss X had a right of appeal about any concerns she had about inadequacies in the EHC Plan.

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How I considered this complaint

10. As part of the investigation, I have:
• considered the complaint and Miss X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
11. Miss X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The special educational and disability needs code of practice

12. A child or young person with special educational needs (SEN) may have an 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 council can do this.
13. The special educational needs and disability code of practice is statutory guidance (the code of practice). It 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:
• Where a 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.
• 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

14. Miss X’s son has special educational needs and was due to start school in September 2024. As a summer born child though, his school start date could also be deferred to September 2025.
15. Miss X asked the Council to carry out an EHC needs assessment on 6 December 2023. The Council agreed to carry out an EHC needs assessment on 19 February 2024.
16. Miss X chased the Council for progress on assigning an educational psychologist to complete the EHC needs assessment. The Council had been experiencing a significant increase in outstanding EHC needs assessment and it therefore introduced the following process to manage outstanding educational psychology assessments in October 2024:
• all EHC needs assessment requests received before 15 July 2024 were placed in cohort A;
• all EHC needs assessment requests received after 15 July 2024 were placed in cohort B;
17. For cohort A the Council would:
• assign schools an educational psychologist to coordinate assessments for all children in their school in this cohort.
18. There is then a two strand approach to assigning educational psychologists to carry out an assessment:
• strand one - for schools that needed several educational psychologist assessments there were one or more educational psychologists assigned to the school setting to work with the school to assess all the children waiting in the academic year 2023-24;
• strand two – an educational psychologist would be allocated to children who had been waiting the longest, regardless of the setting they were in and that would happen at the same time as strand one.
19. For cohort B the Council would assign an educational psychologist to complete the assessment with the aim of meeting the statutory timeframes.
20. When the Council wrote to parents about those arrangements the Council accepted that meant a few children in cohort B would get their EHC needs assessment before some who had waited longer in cohort A. The Council explained it accepted that was not ideal but said it had taken that action to allow a more targeted approach for cohort A. The Council explained assigning an educational psychologist to a school to work on the outstanding assessments would mean those assessments would take less time than normal.
21. The Council received the educational psychologist report for Miss X’s son on 20 November. On 6 December the Council agreed to issue an EHC Plan.
22. Miss X chased the Council for the draft EHC Plan in January, February and March 2025. At that point the Council said it intended to name a mainstream school, which Miss X made clear was not suitable for her son.
23. The Council issued a draft EHC Plan on 3 April 2025 and began consulting schools. After Miss X asked for some amendments the Council issued a revised draft EHC Plan on 24 April. Miss X raised concerns about the content of the proposed EHC Plan and asked for further amendments.
24. Miss X continued to chase the Council for the final EHC Plan between April and July 2025. The Council issued a final EHC Plan which named a specialist school on 23 July.

Analysis

25. Miss X says the Council delayed completing an EHC needs assessment and in issuing a final EHC Plan. The Council accepts it delayed completing the EHC needs assessment. The Council says that was partly due to the shortage of educational psychologists and partly due to the number of draft EHC Plans it had to quality assure.
26. As I say in paragraph 13, the code of practice is clear on the timescales the Council must meet when completing an EHC needs assessment. The Council did not meet the six week timescale for deciding whether to begin an EHC needs assessment and that is fault. There was also notable delay completing the EHC needs assessment and issuing a final EHC Plan. That should all have been completed by 24 April 2024. However, the Council did not issue a final EHC Plan until July 2025. I am satisfied the delay between April 2024 and November 2024 was due to the delay getting advice from an educational psychologist.
27. I recognise shortages of educational psychologists is a national problem and is outside the Council’s control. However, the delay completing the EHC needs assessment due to the delay receiving the educational psychologist’s report is a service failure. I consider a suitable remedy for the delay caused by the educational psychologist delay would be for the Council to pay Mrs X £100 per month. As that is a delay of seven months I therefore recommended the Council pay Miss X £700. The Council has agreed to my recommendation.
28. I am concerned to note though that despite the Council having the educational psychology report in November 2024 it did not issue the final EHC Plan until July 2025. That is a significant delay and is fault.
29. I recognise some of that delay was because of the amount of educational psychology reports the Council had to deal with and the difficulty identifying a suitable school to name in the EHC Plan. However, the code of practice it is clear the Council should complete the entire process within 20 weeks and failure to do that is fault.
30. I am satisfied because of the Council’s failure to issue a final EHC Plan within the statutory timescales Miss X had to wait an extra eight months after the educational psychology report to receive a final EHC Plan. I am satisfied that caused Miss X distress and led to her having to go to time and trouble to chase the Council. I am also satisfied that delayed Miss X’s right of appeal. To reflect that injustice between December 2024 and July 2025 I recommended the Council pay Mrs X an extra £300. The amount takes into account the fact Miss X’s son did not miss out on special educational needs provision because of the delay as he was not attending a school. The Council has agreed to my recommendation.
31. I do not recommend any procedural remedy. That is because I am satisfied the Council has an action plan in place. That is to address the issues with identifying sufficient educational psychologists to complete EHC needs assessment and EHC Plans.
32. Miss X also raises concern about the way the Council decided to manage the EHC needs assessment process for two groups of children. Miss X says because the Council split the groups of children awaiting EHC needs assessments into two cohorts her son’s assessment was delayed longer than other people who had been waiting less time. I refer to the way in which the Council managed the EHC needs assessment process and its reasoning for it in paragraphs 16-20.
33. I am satisfied the process the Council put into place meant Miss X’s son was in cohort A. Given the Council dealt with children who had applied for an EHC needs assessment after July 2024 in cohort B and aimed to meet the statutory timescales for that group I can understand Miss X’s concern. However, it is not the Ombudsman’s role to tell the Council how to manage the EHC needs assessment process.
34. In this case I am satisfied the Council set out a reasoned argument for why it had decided to manage EHC needs assessments in this way. I am also satisfied as part of that process the Council assigned different educational psychologists to work on cohort A cases as compared with cohort B. I am therefore satisfied the Council processed both cohorts at the same time using different educational psychologists. So, I am satisfied the Council did not prioritise cohort B over cohort A.
35. The Council set out a reasoned argument as to why it decided to manage the assessments that way. That is therefore a matter of judgement and not a decision the Ombudsman can comment on. In any event, if any EHC needs assessments went over the statutory timescales parents could still complain to the Ombudsman and seek a remedy for the delay.
36. Miss X says because the Council delayed completing the EHC needs assessment her son could not start school in September 2024. Instead, he had to start school in September 2025, although that start date was also delayed.
37. I am satisfied the issue here was identifying a suitable school placement for Miss X’s son. It is clear the Council had some difficulty identifying a suitable placement as part of drawing up the EHC Plan. Irrespective of those difficulties the point is the Council should have issued the final EHC Plan within the specified timescales and failure to do that is fault. It is therefore possible if the Council had complied with the timescales Miss X’s son could have started school in September 2024.
38. However, that would have been dependent on the Council identifying a school place at a suitable school. I cannot speculate about whether the Council would have been able to do that had the delays I have identified not occurred. There is also some suggestion in the documentary evidence that Miss X had decided to defer entry for her son to start school until September 2025 as he was a summer born child. I appreciate though that may have been because Miss X believed her son needed a specialist school and she would not have been able to secure one without the EHC Plan.
39. I therefore consider Miss X is left with some uncertainty about whether her son could have started school earlier had the Council not delayed issuing the final EHC Plan. I consider a reasonable outcome for this part of the complaint would be for the Council to apologise to Miss X and pay her an additional £400 to reflect her uncertainty. That is a total financial payment of £1,400. The Council has agreed to my recommendation.

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Action

40. Within one month of my decision the Council should:
• apologise to Miss X for the distress, uncertainty and frustration she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet; and
• pay Miss X £1,400
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman