Summary: Mrs X complains about the delay from the Council in completing an Education, Health and Care needs assessment for her child. She says the Council failed to meet statutory deadlines and has not agreed to pay for an occupational therapist report she paid for. Mrs X confirms this issue has affected both her mental health and her child’s health and learning. We found the Council at fault. It delayed in completing the Education, Health and Care needs assessment and further delayed in completing the plan. We find that it should apologise to Mrs X and make payment to recognise the injustice caused.

The complaint

1. Mrs X complains about the delay from the Council in completing an Education, Health and Care (EHC) needs assessment for her child.
2. Mrs X says the Council failed to meet statutory deadlines for response and delayed its reply into her complaint. She reports that she paid for an Occupational Therapist (OT) report using a company which is approved by the Council. She confirms the Council refused to pay for the report however since she appealed the decision to the SEND Tribunal, the Council has now agreed to use the report.
3. Mrs X confirms this issue has affected both her mental health and her child’s health and learning.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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.
6. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
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)
8. 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

9. Mrs X has complained about the Council refusing to use and pay for an OT report she commissioned. Mrs X has confirmed that she lodged an appeal to the Tribunal about this, which she has since withdrawn, after the Council agreed to use the report in her child’s EHC plan.
10. There is no requirement for a council to use a private OT report in its assessment of a child’s needs. However, a parent is entitled to appeal a council’s decision not to include a report to the Tribunal. I note that Mrs X has done so in this circumstance.
11. However, because Mrs X has used this right to appeal to the courts, we cannot now investigate the specific part of the complaint to do with the OT report. 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)
12. It would therefore be up to the courts to determine whether it would be reasonable for the Council to incur the costs of the report and Mrs X’s appeal. This is still the case even if Mrs X chose to withdraw the case before the Tribunal hearing was held, as the Ombudsman considers court action to be engaged once the appeal papers are lodged with the courts.
13. We cannot therefore consider this aspect of the complaint, and our investigation will instead focus on the delay in completing the assessment from the Council and any loss of educational provision up to when the plan was issued.

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How I considered this complaint

14. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
15. I have also considered the relevant statutory guidance, as set out below. In addition, I have considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

16. 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. 
17. 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.

18. 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)
19. 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. 

20. Those consulted have a maximum of six weeks to provide the advice. 

What happened

21. The Council agreed to complete an assessment of Mrs X’s child in January 2025 which was due to be completed by April 2025. In June 2025, the Council were provided a copy of the EP’s report. The Council finalised the plan in September 2025.
22. Mrs X made a complaint into the delay from the Council from completing the assessment. In July 2025 the Council issued its stage one response into the complaint.
23. Mrs X contacted the Council in July 2025 to raise a stage two complaint. The Council reports that it did not receive this correspondence from Mrs X. Mrs X confirms that she did not receive a response from the Council until she escalated the matter to the Ombudsman.
24. The Council issued a stage two response in March 2026.

Analysis

25. In its response to the complaint, the Council has admitted fault in failing to meet the statutory deadlines for deciding about an EHC plan. The Council after agreeing to undertake an assessment in January 2025, had until April 2025 to complete this.
26. The Council did not complete its assessment and issue a plan until September 2025, a delay of five months from April 2025. The Council has confirmed the delay was down to a shortage of educational psychologists.
27. The Ombudsman recognises the national shortage of educational psychologists and the effect that this has on completing EHC needs assessments. However, it is still fault that the Council did not meet these deadlines.
28. Our guidance on remedies sets out that this fault would have caused the complainant (Mrs X) uncertainty and frustration over the delay and recommends an award of £100 a month for this. I have considered the individual circumstances of this case and have made an award of £500 for the delay in completing the assessment.
29. Mrs X has explained that her child also lost out on educational provision due to the delay from the Council in completing the assessment. However, the Ombudsman can only consider a loss of educational provision from when the Council should have produced the plan after it received the advice from the educational psychologist.
30. Mrs X says that her child’s needs were clearly set out in the EP assessment. The Ombudsman however would be straying into the Tribunal remit, if we decided what provision should and would have been made before the EP report was received.
31. After an EP report is received the Council should then follow the timescales set out in the SEND Code of Practice (six to eight weeks) to issue a draft plan.
32. The evidence provided shows the Council received the EP report at the beginning of June 2025. It therefore at the latest should have completed the draft plan at the end of July 2025 or beginning of August 2025.
33. The Council did not provide the report until September 2025. We can conclude therefore that Mrs X’s child did lose out on some educational provision for a few weeks either side of the summer holidays in 2025.
34. Mrs X has explained the impact this had on her child. In that they were falling behind with their learning, and it also impacted their mental health. Mrs X also says she felt her child could have been better supported during the issues they were experiencing at school at the time. Mrs X explains that due to the distress this issue caused her, it meant that she had to take time off work.
35. I must also consider, the handling of the complaint by the Council. In its stage one complaint response, the Council made a commitment to complete the assessment process by the end of July 2025. It failed to complete the assessment within this timeframe.
36. We publish the Complaint Handling Code which sets out best practice in how councils should deal with complaints. In this case, we found the Council at fault because it failed to meet its own deadline.
37. After the deadline expired, it should have contacted Mrs X back to tell her of the reasons for this and to provide a further update. Although I accept the Council’s explanation that it did not receive Mrs X’s correspondence into its stage one response, this could have been avoided if it had followed up on its own deadlines.
38. To prevent similar faults from happening in the future, the Council should consider our guidance and tell us what action(s) it will take to improve the way it deals with complaints.
39. The failure to respond to Mrs X’s request of escalation with the failure to provide an update into the missed deadline, would have further increased the distress that Mrs X felt over this matter.
40. I have therefore considered this distress in the way the complaint was handled. Also, I have considered the small amount of educational provision missed because of the maladministration of the Council. In recognition of this, I find that a further award is appropriate. I also find the Council should apologise to Mrs X for the distress and uncertainty this issue has caused her.

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Action

41. Within four weeks of the final decision, the Council has agreed to:
1. Provide an apology for the unnecessary distress and uncertainty caused by the delay in completing the Educational, Health and Care needs assessment.
2. Pay Mrs X £500 for the delay in completing the Educational, Health and Care needs assessment.
3. Pay Mrs X £250 for the handling of the complaint, failing to provide updates and for the lack of special educational provision for some of the summer and autumn terms of 2025.
4. Consider our guidance in the complaints handling code and confirm what action it will take to prevent the faults identified as part of this investigation in terms of the failure to keep to deadlines and provide updates about this.
42. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. I find fault causing injustice. I found the Council should apologise and make payment to Mrs X to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman