Summary: There was a ten-month delay by the Council in issuing an Education, Health and Care (EHC) Plan. This was fault. The Council has agreed to apologise, make a symbolic financial payment to acknowledge the impact of the delay, and make service improvements.

The complaint

1. Ms X complained to the Council in Autumn 2025 that the Council had failed to proceed with a decision on an Education, Health and Care (EHC) Plan using an Independent Educational Psychology (EP) report in the absence of a Council commissioned EP report.
2. Ms X complained the Council had breached the twenty-week statutory timeframe for issuing a final EHC Plan, which could have bene avoided by using the independent report.
3. Ms X said the delay meant her child was without support they urgently needed with no clear end in sight.

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The Ombudsman’s role and powers

4. 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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. 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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How I considered this complaint

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

What happened

13. The Council agreed to carry out an EHC needs assessment in May 2025. This would count as week six of the twenty-week process, meaning any final EHC Plan was due by August 2025.
14. Ms X complained in September 2025 when this timeframe had passed.
15. The Council upheld the complaint about delay. It said there was a nationwide shortage of EP’s and an increase in demand for EHC Plans. This meant it was unable to finalise all cases within the statutory timescales.
16. The Council referred to Special Educational Needs and Disability (SEND) Regulation 6(1) which says it is mandatory to obtain EP advice and the SEND Code of Practice which says the EP should “normally be employed or commissioned by the local authority” (9.49 The Code).
17. The Council said as a result it was “unable to begin drafting an EHCP until we receive the report”.
18. The Council said it was taking the following steps to improve timeliness of EHC Plans:
• Recruit additional agency EP’s to support with the backlog of statutory advice requests.
• Request further funding from Cabinet to recruit further agency EP’s, to continue to reduce waiting times for advice.
• Recruit additional EHC Plan Co-ordinators, to support with reducing caseloads within the Statutory SEND Service.
19. The Council said an EP was likely to be allocated in December 2025.
20. The Council said it had received and considered Ms X’s independent EP report, and this would form part of the evidence for the assessment but maintained it had a duty to commission its own EP report.
21. Ms X complained to stage two of the appeal process as she did not consider the Council’s reason for not relying solely on the independent EP report legitimate.
22. Ms X was also unhappy there was no clear timescale for completing the assessment.
23. The Council replied to the stage two complaint in November 2025 but did not alter its substantive position that it would commission its own report despite the delay and impact of the delay.
24. The Council decided following completion of the assessment to issue a Plan. It issued a draft Plan in February 2026 and a final Plan in late June 2026. The process therefore took thirteen months not twenty weeks.
25. Ms X has appealed the final Plan to the Tribunal.

Relevant law and guidance

26. 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. 
27. 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 SEND 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 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).

28. 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. 

29. 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”. (Regulation 6(4)).  
30. Those consulted have a maximum of six weeks to provide the advice. 

Analysis

31. The Council has now issued a final EHC Plan but was ten months late doing so. This was fault.
32. The Council was wrong to tell Ms X that it had no option but to obtain its own EP report. The law does not say this. While EP advice is a mandatory requirement of Regulation 6(1), the Council can choose not to seek further advice if advice is already available and the person providing the advice, parent and Council are all satisfied it is sufficient for the assessment process. It is open to councils to accept independent reports that already exist where this is agreed by all parties under Regulation 6(4). The Code refers to EP’s normally being commissioned by councils but leaves open the option they may not be.
33. While the Council has overstated its legal obligation, this does not mean that it would have made a different decision in practice. Councils often do want to get their own reports, and it is a decision for them whether to rely on an independent expert. The Ombudsman cannot question the merits of such a decision.
34. Ms X has appealed the final Plan so any disagreement about the expert findings, or recommendations, are matters which have, or could, be raised as part of the Tribunal proceedings and are outside the scope of the Ombudsman.
35. The delay has caused uncertainty about what provision would have been in place for Ms X’s child sooner if the EHC Plan had been issued on time. Our usual approach is to ask for a symbolic financial remedy of £100 per month of delay to acknowledge the uncertainty and distress caused.

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Action

Within four weeks of my final decision:

36. The Council will apologise to Ms X for the faults identified in this decision statement.
37. The Council will pay Ms X £1000 to acknowledge the impact of the delay.

Within two months of my final decision:

38. The Council will review its practice around considering existing evidence in an EHC needs assessment to ensure the Council correctly exercises its discretion in line with the SEND Regulations. The Council should advise the Ombudsman of action it decides to take.
39. The Council has already issued a strategy in response to an Improvement Notice issued by the Government which includes a priority to improve the times for EHC Plans. I therefore do not consider it is necessary to duplicate recommendations which are already underway.
40. The Council will provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman