Council at fault for delays during EHC needs assessment process and failure to make Section 19 decision

An investigation by the Local Government and Social Care Ombudsman has found West Sussex County Council at fault for delays during a child’s Education Health and Care (EHC) needs assessment and Plan process.

Meanwhile, the investigation found fault with the council for failing to make a Section 19 decision, its poor communication with the child’s mother and its delayed complaint response.

The case concerned Y, who has special educational needs (SEN).

In early 2023, the council refused to carry out an EHC needs assessment for Y.

His mother, Mrs X, requested a needs assessment again in October 2023. The council refused and Mrs X appealed.

Y attended a mainstream school until summer June 2023. The school informed the council that Y had stopped attending in June 2023. From September 2023, the school delivered 2 hours per week of alternative provision.

Mrs X said she repeatedly told the council that 2 hours per week was not enough provision but was told that Y was still on roll at school and it was the school’s responsibility.

In October 2024, Mrs X wrote a formal letter to the council requesting Section 19 provision. The lack of alternative provision formed part of Mrs X’s complaint to the council.

In February 2024, the council agreed to assess Y. In May 2024, an Educational Psychologist assessed Y.

After no communication from the council since February, Mrs X started legal proceedings against the council. A week later, the council issued a draft EHC Plan in September 2024.

Mrs X complained to the council about the delays during the EHC needs assessment and draft Plan process, poor communication and that Y was missing a suitable education.

The council apologised for the delays and poor communication. Meanwhile, it agreed to consider Mrs X’s request for alternative education provision under Section 19 and recognised that the 2 hours a week with a mentor was not sufficient.

In November, Mrs X escalated her complaint to stage 2.

The council issued Y’s final EHC Plan in December 2024 naming a specialist school. It responded to Mrs X’s stage 2 complaint in March 2025.

Considering Mrs X’s complaint, the Ombudsman said: “The council issued Y’s final EHC Plan in December 2024, when it should have issued it in February 2024 (20 weeks from when Mrs X requested the needs assessment). The council put the delay down to the shortage of educational psychologists (EPs).

“The Ombudsman is aware there is a national shortage of public and private EPs. While I accept there are justifiable reasons why the EHC Plan needs assessment took longer than it should, the Ombudsman can make findings of fault where there is a failure to provide a service within statutory timescales regardless of the reasons for that service failure.”

The Ombudsman added: “The council issued Y’s Final EHC Plan in December 2024 - an overall delay of approximately 10 months. The delay caused Mrs X frustration and uncertainty about whether Y would have received support sooner. It also meant Mrs X’s appeal rights were delayed.”

Turning to the council’s communication, the Ombudsman said: “The council acknowledged and apologised for not keeping Mrs X updated on the progress of Y’s EHC needs assessment.

There is no record on the council’s case notes of any contact with Mrs X between February and December 2024. This was fault.”
Looking at the council’s section 19 duty, the Ombudsman observed that Y only received 2 hours per week of alternative provision from February 2024 to January 2025.

The investigation therefore found fault with the fact the council did not make a Section 19 decision and did not increase the provision, meaning that Y was without a suitable education for a year.

Meanwhile, the investigation found fault with the council for delaying its response to Mrs X’s request to escalate her complaint to Stage 2.

To remedy the injustice caused, the council was recommended to:

• Apologise to Mrs X for the delayed EHC Plan process, the poor communication and for failing to consider its Section 19 duty.
• Pay Mrs X £1,000 in recognition of the delays during the EHC Needs Assessment and Plan process.
• Pay Mrs X £2,700 in recognition of the missed education provision.
• Pay Mrs X £500 in recognition of the distress caused by the council’s poor communication and the time and trouble it has taken her to pursue the complaint.

A West Sussex County Council spokesperson said: “We accept the Ombudsman’s findings regarding delays in the Education, Health and Care Plan process. We have apologised to the complainant and provided a financial remedy in recognition of the impact on their family, including the distress and the time involved in pursuing the complaint.”

Lottie Winson