Summary: The Council delayed deciding whether to issue Mrs X’s child, Y with an EHC Plan within statutory timescales, caused by a 16-week delay in obtaining Educational Psychologist (EP) advice. It then further delayed issuing Y’s final EHC Plan by 14 weeks after it received the EP advice. The Council will apologise and make a symbolic payment in recognition of the injustice caused to Mrs X and Y.

The complaint

1. Mrs X complained about delays in the Education, Health, Care (EHC) needs assessment process for her child Y. She said the Council:
• delayed issuing a final EHC Plan in line with statutory timescales; and
• did not adhere to The Special Education Needs and Disability Regulations 2014 after she requested advice and information be sought from Occupational Therapy.
2. Mrs X says the matter has caused her distress, frustration and uncertainty

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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(1), as amended)
6. 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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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council 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

Relevant law and guidance

Education, Health, and Care needs assessments

9. 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)

Advice and information for EHC assessments

10. 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); 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 

11. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.

Mediation

12. Councils must arrange for a child’s parents or the young person to receive information about mediation as an informal way to resolve disputes about decisions that can be appealed to the Tribunal.

What happened

13. Mrs X’s child, Y, is of preschool age and has special educational needs (SEN) which impacts their ability to receive an education.
14. In November 2024 Y’s pre-school educational setting asked the Council to complete an EHC needs assessment for them. In December 2024 a panel refused to assess, Mrs X requested mediation.
15. Mrs X said no mediation took place. At the end of December 2024, the Council agreed to Y’s EHC needs assessment.
16. At the beginning of January 2025, the Council sent Mrs X the decision agreeing to Y’s EHC needs assessment. The Council requested EP advice.
17. In late February 2025, Mrs X requested the Council seek information and advice from Occupational Therapy (OT) for Y under SEND Regulation 6(1)). She said Y required the assessment due to self-regulation and sensory issues preventing engagement with the learning environment.
18. In March 2025 the Council advised Mrs X that prior to her official request for an OT assessment, the Council had sought advice and information from the Children and Young People’s Service (CYPTS). The service had advised Y was not known to it and therefore it would not be commissioning an OT report for Y. It recommended Mrs X make a referral to CYPTS directly.
19. Mrs X complained to the Council, she said:
• she was still waiting for Y’s EHC needs assessment to be completed. She said the request was made in November 2024 and after approaching mediation services at the end of December, despite no mediation taking place, the Council agreed to assess;
• she had requested advice be sought from OT but had received an unsatisfactory response that Y was not currently under any occupational therapy services.
20. In response the Council accepted it had failed to adhere to the statutory timescales to complete Y’s EHC needs assessment after mediation. It said the final plan should have been issued by late March 2025. It explained the delay was due to its challenges to recruit and retain educational psychologists which are necessary to complete the process. It explained the steps it is taking to address the delays. It said requests were made to agencies such as OT and the responses had been added to Y’s file.
21. Mrs X escalated her complaint
22. In its response the Council accepted it had not responded to Mrs X’s complaint as she had expected, it accepted delays were ongoing in Y’s EHC needs assessment process due to EP shortages, however an EP had now been assigned. It said a decision would be made whether to issue after the assessment had been completed.
23. The EP report was produced at the end of May 2025. The Council agreed to issue a Plan for Y at the beginning of June 2025.
24. Mrs X was not satisfied with the Council’s response and asked the Ombudsman to consider her complaint.
25. Mrs X advised Y left their pre-school education setting in August 2025 as it advised it was no longer able to cope with Y’s needs. The final EHC Plan was issued for Y at the end of October 2025. Mrs X has appealed the content of Ys final EHC Plan to the SEND Tribunal.

My Findings

The EHC needs assessment process

26. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
27. The whole process should have been completed within 14 weeks of its agreement to assess in December. The EP report should have been available to the Council by the end of January, so the Council could make its decision to issue by the end of February and issue a final plan by the end of March 2025.
28. The EP report was not complete until the end of May 2025 which was a delay of 16 weeks and fault. The Council has accepted it has taken longer than it should to complete the process due to a shortage of Educational Psychologists. This is service failure and fault.
29. Once the Council received the EP report it should have made a decision to issue within four weeks by mid-June 2025. It made its decision to issue at the beginning of June. The Council should then have issued Y’s final plan within four weeks of this date and by mid-July 2025. It did not do so until 20 October 2025 which is a further delay of 14 weeks delay which is fault.
30. In total the Council delayed completing the statutory process by 30 weeks. This caused Miss X frustration and uncertainty and delayed her right of appeal to the SEND tribunal which she used shortly after receiving the final EHC Plan.
31. On balance, had the Council issued Y’s EHC plan without delay following receipt of EP advice it is likely, Y would have had access to the provision in their EHC Plan from July 2025. The delays meant Y lost this opportunity.

OT assessment request

32. Mrs X asked the Council to seek OT advice as part of Y’s EHC needs assessment. While there is no absolute duty to seek OT advice as part of the assessment, the Code says councils should ‘consider’ with professionals what advice is necessary to ensure the assessment covers all of the child’s relevant education, health and care needs. The Council’s response that Y was ‘not known to service’ means it is unlikely it is fulfilling its statutory duties. It is for councils to decide whether it is reasonable or necessary. It is not health or other services’ responsibility to decide. There is no evidence showing the Council considered whether it was reasonable or necessary at the time for it to seek OT advice in the particular circumstances relating to Y. That was fault as each case such be considered on the individual circumstances and not as a blanket response.
33. However, in this instance records show Mrs X had already commissioned her own OT assessment and OT provision was not included in the final Plan. Therefore, I cannot say this fault caused an injustice. Mrs X has appealed the content of Ys final EHC Plan to the SEND Tribunal.
34. We have investigated other similar complaints recently related to the EHC needs assessment process and made recommendations. The Council has an ongoing ‘action plan’ to address EP delays and reduce EHC needs assessment backlogs, I have not made further service improvement recommendations relating to this matter. We will monitor the Council’s ongoing work to reduce the backlog through our casework.

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Action

35. To remedy the injustice the Council caused to Mrs X, the Council agreed to within one month of the final decision:
1. apologise in writing to Mrs X to acknowledge the injustice its service failure and delays have caused. 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.
2. Pay Mrs X £950. This is a symbolic payment in recognition of the distress, frustration, uncertainty, and loss of provision caused by the Educational Psychologist delays, delays in the issuing of Y’s final EHC Plan and delayed appeal rights.
36. The Council will provide us with evidence it has complied with the above actions.

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Decision

37. I have completed my investigation with a finding of fault causing injustice by delays in the EHC needs assessment process.

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Investigator's decision on behalf of the Ombudsman