Summary: We have found the Council at fault for failing to issue Mrs X’s child’s Education, Health and Care Plan within the statutory timescales. This caused the family avoidable distress, uncertainty and frustration. The Council has agreed to apologise and make Mrs X a symbolic payment.

The complaint

1. Mrs X complains the Council failed to complete her child’s Education, Health and Care (EHC) Needs Assessment within the statutory timescales. She said that her child cannot attend school without support and this has caused the family distress.

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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 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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. 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)
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)

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What I have and have not investigated

7. I have not investigated matters that Mrs X has appealed.

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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.

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What I found

Law and guidance

EHC Plan

10. A child or young person with special educational needs may have an Education, Health and Care (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.

Timescales and process for EHC assessment

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 SEN. In January 2025, Mrs X asked the Council to carry out an EHC Needs Assessment for Y. She also asked that a Speech and Language Therapist (SALT) and Occupational Therapist (OT) be consulted as part of the assessment.
13. The Council agreed to assess Y and said it would consider Mrs X’s request regarding SALT and OT.
14. Two months later, Mrs X complained that the Council had missed the statutory deadline for the EHC Needs Assessment. The Council apologised and explained the delay was due to the shortage of educational psychologists (EPs).
15. Mrs X escalated her complaint to stage 2. Despite being chased by Mrs X, the Council took a further three months to respond to Mrs X’s stage 2 complaint.
16. In September, the Council issued its response. It upheld Mrs X’s complaint and agreed to remedy any potentially missed provision once it issued Y’s final EHC Plan.
17. Mrs X brought her complaint to the Ombudsman.

Update

18. The Council issued Y’s final EHC Plan in January 2026. Mrs X appealed the content of the Plan.
19. The Council has not followed up on the potential remedy referred to in its stage 2 response regarding any missed provision.

My findings

Delay to EHC needs assessment process

20. The Council should have issued Y’s EHC Plan within 20 weeks from the point when Mrs X requested an assessment. The process took a year, The 33 weeks of delay caused Mrs X avoidable distress and uncertainty. The Council acknowledged this delay and said this was due to the shortage of EPs.
21. We have seen an increase in cases where there is a delay in councils completing the EHC needs assessment process because of a lack of EPs. The shortage of EPs is a national issue. However, we still hold councils to account for ‘service failure’.
22. The Council has agreed to make a symbolic payment of £100 for each month outside the statutory timescales which continues up to the point Mrs X received a right of appeal. This totals £700.
23. The £100 a month is a symbolic payment to recognise the frustration and uncertainty caused to the family by the delay. It is not to remedy any loss of special education support to Y as they did not yet have an EHC Plan. 

Missed provision

24. Because of the delays in obtaining an EP assessment as part of the needs assessment, we can assume the EP report and the final EHC Plan reflects the child’s needs as they are now, and not 6+ months previously. We cannot guess what that provision would have been had the plan been issued within timescales. If Y’s SEN has been disadvantaged by any delay in obtaining the mandatory EP advice, we would expect the EHC plan provision to reflect their needs at that stage (so it will take account of any impact in delay in SEN provision), such as more intensive therapies and if it does not, then the plan is appealable.
25. We cannot say an EHC needs assessment would have reached the same conclusions had it taken place weeks or months earlier. This is because the assessment process takes account of the latest evidence relating to Y’s present circumstances, rather than looking at Y’s situation at the point when the EHC Plan should have originally been provided.

Failure to follow up a remedy

26. The Council said it would consider whether the delays meant that Y missed out on provision. I have seen no evidence that the Council has done this. The Council has agreed to satisfy the remedy it offered in response to Mrs X’s complaint.

Delayed complaint process

27. The Council took 3 months to respond to Mrs X’s escalation to stage 2 of the complaint process. This was fault that caused her additional distress and frustration. The Council has agreed to apologise for the delay and make a symbolic payment of £200 for the time and trouble it took Mrs X to complain and chase the Council for a response.

Improved service

28. During the course of my investigation, the Council confirmed it had taken steps to address delays to the EHC needs assessment process. It has increased the Council’s EP capacity, recruited additional staff in the SEND team and EP service, issued a system-wide EHC needs assessment recovery plan, introduced performance targets and made operational improvements.
29. Given the actions in paragraph 28, I have not recommended any service improvements.

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Agreed action

30. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise for the delay to Y’s EHC Plan and during the complaint process.
2. Pay Mrs X a symbolic payment of £700 in recognition of the delayed EHC Plan.
3. Pay Mrs X £200 for the time and trouble it has taken her to pursue the complaint.
4. Consider and follow up the remedy it offered to Mrs X in response to its complaint response.
31. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman