Summary: The Council was at fault for almost nine months delay assessing Mrs X’s child, W, for an Education, Health and Care Plan. This caused Mrs X significant frustration and uncertainty and meant W missed out on some special educational provision they should have had. To remedy their injustice, the Council will apologise to Mrs X and make symbolic payments. The Council is already taking suitable action to prevent similar fault in future.

The complaint

1. Mrs X complained the Council wrongly decided not to assess her child, W, for an Education, Health and Care Plan, and that after later deciding it would assess W, it took too long doing so.
2. Mrs X said this caused her anxiety as she was concerned W’s school was unsuitable for their needs. Mrs X said the upset the Council’s actions caused was more harmful because it occurred during a period of significant familial hardship relating to her other child.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(1), 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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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 before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

10. Children with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
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:
• Where a council receives a request for an EHC assessment it must decide whether to agree to the assessment within six weeks. If the council decides it will not assess a child, the child’s parent or guardian can appeal that decision to the SEND Tribunal;
• If the council decides to carry out an assessment, it should do so “in a timely manner”;
• As part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice;
• If the council decides to issue an EHC plan after an assessment, it should prepare a draft EHC plan and send it to schools that may be able to accept the child or young person and meet their needs. Schools should respond to the consultations within fifteen calendar days; and
• The whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC plan. This means councils have eight weeks from the date the receive the EP advice to issue a final EHC Plan.

What happened

12. In May 2024, Mrs X asked the Council to assess W for an EHC Plan. It refused to carry out the assessment in July.
13. Mrs X appealed to the SEND Tribunal and in late September, before the Tribunal considered her case, the Council agreed to assess W. Mrs X says the Council refused to assess W because it could not open a key medical report. She says once the Council opened that file, it decided to carry out the assessment.
14. W’s school paid for them to be assessed by an EP, who issued their report in early July. The Council accepted that EP assessment was suitable and agreed to use it to draft W’s EHC Plan. It issued W’s final Plan in mid-October 2025. The special educational provision in the Plan included:
• Daily targeted help to develop W’s social skills;
• Use of strategies to communicate with W effectively;
• An adapted curriculum with learning broken into steps and with repetition built in;
• Strategies to increase the predictability of W’s day;
• Sensory breaks and access to a safe space;
• Daily sessions to improve W’s motor skills; and
• One-to-one help with selfcare.
15. In response to a complaint from Mrs X, the Council accepted it had taken too long to assess W. It said this was because it was receiving a large number of assessment requests and the EPs available could not meet that demand. The Council explained it was hiring more EPs as a result. The Council offered Mrs X £150 to recognise the impact of the delay.
16. The Council has implemented an EHC Plan waiting list ‘recovery plan’. As part of that plan, the Council agreed a £3m investment in late November 2025 to:
• Hire and keep more EPs;
• Streamline the assessment process;
• Provide greater support to parents while assessments are ongoing; and
• Improve how it monitors the process of assessments.

Findings

Decision to refuse to assess W

17. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
18. Mrs X is unhappy about how the Council decided it would not assess W for an EHC Plan. However, she appealed that decision to the SEND Tribunal. The matter of how the Council came to its decision is too closely linked to Mrs X’s appeal on the decision itself. Therefore, we cannot investigate it.

EHC assessment delay

19. 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.
20. After the Council decided it would assess W in late September 2024, it had six weeks to obtain the EP advice (by early November). It did not do this, and ultimately W’s school paid for it. This meant the Council had the EP advice in early July 2025, 35 weeks late (almost nine months). This delay was due to the nationwide shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons why the EP advice took longer than it should have, W’s wait to be seen by an EP was well beyond the six-week timescale and so was fault.
21. After receiving the EP advice, the Council had a further eight weeks to issue W’s final Plan. This was by early September 2025. It took a further 14 weeks, which was six weeks too long and was also fault.
22. I am pleased to see the Council is making efforts to resolve the issue, as set out in paragraph 16. Because the Council has already taken suitable steps to decrease the time it takes to assess and issue a child’s first EHC Plan, I have not made a further recommendation.

Injustice

23. Educational psychologist advice is the key source of professional information for a child’s EHC Plan. The advice is based on the child’s presentation on the day of the assessment. For that reason, I cannot say, even on balance, that had the Council obtained the advice by early November 2024 and issued W’s EHC Plan eight weeks after that, it would have resulted in the same special educational provision as in the Plan the Council ultimately issued in October 2025. The injustice was therefore uncertainty and frustration for Mrs X between November 2024 and July 2025. That injustice was more significant for Mrs X because of the hardship she and her family were already dealing with relating to her other child.
24. When the Council received the EP advice in July 2025 it had the core information necessary to prepare W’s EHC Plan. Therefore, on balance of probabilities, if the Council had issued W’s Plan by September 2025 as it should have, the Plan would likely have contained very similar provision to that in W’s October 2025 final Plan. This meant W missed out on six weeks’ worth of the special educational provision in the Plan.

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Action

25. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the uncertainty and frustration she felt because of the delay assessing W for an EHC Plan between November 2024 and October 2025. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Mrs X £1100 to recognise the frustration and uncertainty she felt due to the Council’s delay obtaining the EP advice. If the Council has made the payment for £150 referenced in paragraph 15, it should only pay Mrs X a further £950.
3. Pay Mrs X £450 to recognise the impact of the six weeks of lost provision on W.
26. The Council will provide us with evidence it has complied with the above actions.

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Decision

27. I find fault causing injustice. The Council has agreed actions to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman