Summary: We found fault with the Council delaying for 20-weeks outside the statutory timescales in producing Ms X’s child’s Education, Health and Care Plan. We also found fault with the Council using Ms X’s private Educational Psychologist report, without reimbursement, in the Education, Health and Care Plan rather than sourcing its own. The Council agreed to provide an apology, reimbursement for costs incurred sourcing private reports and a symbolic financial payment for the injustice its fault caused.

The complaint

1. Ms X complained the Council failed to meet the statutory timescales for issuing an Education, Health and Care Plan for her child. Ms X says she also privately sourced an Educational Psychologist because the Council failed to complete this.

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The Ombudsman’s role and powers

2. 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)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
5. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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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What I have and have not investigated

8. I have investigated Ms X’s complaint about the delays in the Education, Health and Care Plan assessment for her child. I have specifically investigated this in relation to the impact on Ms X and how the Council fulfilled its statutory duty to assess Ms X’s child in line with the relevant regulations.
9. I have not considered the potential delayed or missed provision for Ms X’s child. This is because Ms X has raised a Judicial Review of the Council through the courts. Ms X’s statement of grounds for Judicial Review included the failure to arrange Section 19 Alternative Provision of education for her child since January 2025 and failure to secure provision from her child’s Education, Health and Care Plan since December 2025.
10. I cannot investigate Ms X’s complaints about lack of education and Education, Health and Care Plan provision because it relates to matters she has since submitted to the courts for Judicial Review. I have also not considered the educational provision and support Ms X provided for her child while the Council delayed in completing the Education, Health and Care Plan assessment. This is also too intertwined with the Judicial Review matters. The law prevents us considering matters that are being considered as part of legal proceedings.

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How I considered this complaint

11. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
12. Ms X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Relevant law and guidance

EHC Plan

13. A child or young person with special educational needs 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 the council can do this. 
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.
• 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);  

15. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

16. The council must not seek further advice if it already has advice and “the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process”. In making this decision the council and the person providing the advice should ensure the advice remains current.  
17. Those consulted have a maximum of six weeks to provide the advice. 
18. 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.

What happened

19. In March 2025, Ms X asked the Council to complete an EHC Plan Needs Assessment of her child, Y. The Council agreed to assess Y later in March 2025.
20. In June 2025, Ms X made a formal complaint to the Council.
21. The Council issued a complaint response later in June 2025. The Council confirmed it had agreed to issue an EHC Plan for Y but was experiencing delays with Educational Psychologists which was preventing progress with Y’s EHC Plan Needs Assessment. The Council said Ms X could approach the Ombudsman with her complaint.
22. In July 2025, Ms X provided the Council with a private Educational Psychologist report she commissioned. The Council confirmed it would use this report for Y’s EHC Plan Needs Assessment.
23. The Council agreed to issue an EHC Plan for Y in October 2025 and shared a draft EHC Plan with Ms X.
24. In December 2025, the Council produced a final EHC Plan for Y.
25. At the start of 2026, Ms X sought an Occupational Therapy assessment from the Council. The Council agreed to complete this assessment. Ms X sourced a private Occupational Therapy assessment for Y because of concerns about delays in the Council completing this.

Analysis

26. Following Ms X’s request for an EHC Plan Needs Assessment for Y in March 2025, the Council had six weeks to decide whether to assess Y for an EHC Plan. The Council decided to assess Y within six weeks of Ms X’s request. The Council met the statutory timescales and I do not find fault.
27. The Council should have decided whether to issue an EHC Plan for Y in June 2025 and produced a final EHC Plan for Y in July 2025.
28. As part of Y’s EHC Plan Needs Assessment, the Council had a duty to get advice from relevant professionals; this included an Educational Psychologist. The Council could not get Educational Psychologist advice in time to meet the deadline to decide to issue an EHC Plan for Y or produce Y’s final EHC Plan within the statutory timescales; this was a service failure. This service failure came about because of a lack of Educational Psychologists to meet the demand.
29. The Council’s service failure meant Ms X needed to source a private Educational Psychologist assessment and report at her own expense. The Council has a statutory duty to get Educational Psychologist input as part of an EHC Plan needs assessment. The Council has accepted the private Educational Psychologist report and used this to write Y’s EHC Plan. Ms X has fulfilled the Council’s statutory duty causing her to incur costs when doing so. The Council has accepted in its response to the Ombudsman it should reimburse Ms X for the cost she incurred in sourcing the Educational Psychologist report.
30. After the Council received the Educational Psychologist advice, the Council took too long to finalise Y’s EHC Plan. With Educational Psychologist advice available, the Council should have issued the final EHC Plan in less than eight weeks, taking account of the timescales set out in the Code. This includes time to:
• write a draft EHC Plan;
• issue it to the family and give them 15 days to consider the draft EHC plan and provide their comments; and
• 15 days for the education establishment to comment.
31. The overall guidance is that final plans should be issued as quickly as possible.
32. When Ms X provided the Educational Psychologist advice to the Council, it had just reached the deadline for production of the Final EHC Plan. The Council took a further 20 weeks to issue Y’s final EHC Plan from this point. This delay of 20 weeks would have caused Ms X distress, frustration and uncertainty. The Council has acknowledged this impact on Ms X and offered an award of £500 in response to the Ombudsman for the injustice caused by its delays.
33. The Council has also offered a further £500 and apology for the lack of timely responses and clarity it provided in this matter and the impact this would have had on Ms X. The Council’s financial offers fall in line with the Ombudsman’s guidance on remedies and are suitable to address the injustice to Ms X in this matter.
34. As part of the Council’s response to the Ombudsman, it acknowledged Ms X sourced an Occupational Therapist assessment in 2026. The Council said it had already agreed to commission this when Ms X sought the private assessment so did not initially agree to reimburse Ms X. However, the Council has advised it has reconsidered its position and will reimburse Ms X the cost she incurred.

Service improvements

35. The Ombudsman is aware that Essex County Council has been actively working to increase the availability of Educational Psychologists for several years. This work is being undertaken with a direct purpose of trying to improve timeliness of production of EHC Plans. The ongoing actions by the Council directly cross-over with the issues identified in this case. For this reason, I am not making any service improvements.

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Action

36. Within one month of the Ombudsman’s final decision the Council will:
1. Pay Ms X with an apology and a symbolic payment of £500 to acknowledge the distress, frustration and uncertainty caused to her by the Council’s 20-week delay in issuing Y with an Education, Health and Care Plan outside the statutory timescales;
2. Provide Ms X with an apology and a symbolic payment of £500 for the impact on her, including distress and uncertainty, caused by the Council’s lack of timely responses and clarity;
3. Confirm in writing to Ms X it will reimburse her for the cost of the private Educational Psychologist assessment and report the Council used to produce her child’s Education, Health and Care Plan in December 2025 upon receipt of evidence of the cost of this from Ms X; and
4. Reimburse Ms X the £650 cost she incurred in sourcing a private Occupational Therapist assessment for her child in 2026.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman