For some time now, there has been a national shortage of educational psychologists. This is partly due to an increase in demand for EHC Needs Assessments (the legal threshold for an EHC Needs Assessment is relatively low). There is anecdotal evidence that the pandemic, and the home-schooling that went with it, made many parents aware of children’s struggles with learning in a way that they may not have been previously.
A lack of available educational psychologists has become a common reason for delays in completing Needs Assessments of children with suspected SEN.
The shortage of educational psychologists (or EPs) in some areas has been problematic given that almost all children undergoing a Needs Assessment will need to be seen by an educational psychologist.[1] However, a lack of educational psychologists is a resource issue. It does not therefore fall within the justified exceptions for delaying an assessment.
The statutory framework for applying for, and undergoing, an EHC Needs Assessment is now governed by the Children and Families Act 2014 (and the associated secondary legislation, particularly the Special Educational Needs and Disability Regulations 2014).
When a request is made for a Needs Assessment, it triggers a statutory timetable with clear deadlines that must be complied with. The language of the legislation is mandatory and there are very few (lawful) exceptions to these requirements:
- After receiving a request for an EHC Needs Assessment, the local authority in question has six weeks within which it must notify the child’s parent (or the young person) of the decision as to whether or not it will carry out a Needs Assessment: The Special Educational Needs and Disability Regulations 2014, Regulation 5(1).
- Regulation 10(1) SEND Regulations requires the Local Authority to notify the parent by not later than sixteen weeks after the EHCNA request if it decides not to issue a Plan.
- The only exceptions to this requirement (i.e. those which might legally justify an extension of this timeframe) are the four circumstances detailed in Regulation 10(4) (see below).
- If a positive decision is made to give the child an EHCP, the next stage will be to send out a draft plan. Regulation 13(1) requires the local authority to send a draft plan to the parent and give them at least 15 days to respond and make any comments they wish to make.
- Regulation 13(2) requires the Local Authority to issue a final plan by 20 weeks from the date of the EHCNA request. This must be sent to the child’s parent and to any school that it has been requested to consult.
The fact that demand for educational psychologists is currently outstripping supply is not a reason to fail to comply with the statutory timetable outlined above. The legislation is phrased in mandatory terms (‘must’ do etc) and so local councils do not have a discretion in relation to complying with the requirements.
Only the exceptions set out in Regulation 10(4) provide a legal justification for extending the timetable. These exceptions are:
10(4): The local authority need not comply with the time limit referred to in paragraph (1) if it is impractical to do so because—(a)the authority has requested advice from the head teacher or principal of a school or post-16 institution during a period beginning one week before any date on which that school or institution was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens;
(b)the authority has requested advice from the person identified as having responsibility for special educational needs (if any) in relation to, or other person responsible for, a child’s education at a provider of relevant early years education during a period beginning one week before any date on which that provider was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens;
(c)exceptional personal circumstances affect the child or the child’s parent, or the young person during that time period; or
(d)the child or the child’s parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during that time period.
Aside from these exceptions, it is not (legally) open to a local authority to delay the timetable for its own reasons.
Most notably, a lack of resources (whether financial or otherwise) is not mentioned anywhere as a justification for a local authority failing to comply with the statutory timeframe for assessment.
There has been at least one decision by the Local Government Ombudsman on this issue. In the case of Surrey County Council (23 000 875), the parents of a child, K, whose Needs Assessment was delayed mainly because of delays in getting an ed psych assessment, went to the Ombudsman. The council had failed to keep K’s mother updated, so that she had had to contact them for updates about the situation. This had left K without a suitable school placement which had had a direct, knock-on effect on the whole family. The Ombudsman decided that the council was at fault for not having progressed the assessment. They were told to apologise and to award the family financial compensation as well as recommendations being made for them to remedy the situation overall (at the time of responding to the complaint, they had a backlog of 1000 children whose Needs Assessments were delayed because of the shortage of educational psychologists). The local authority accepted the recommendations of the Ombudsman.
The Ombudsman will usually only investigate a case if it has first gone through every stage of the local authority’s own complaints process. This can take time and some children are in desperate, urgent need. If this resource issue continues to delay children’s assessments, it is an issue that might in due course lead to a legal challenge by way of a claim for judicial review.
[1] Regulation 6(1) SEND Regulations 2014 sets out the advice that a local authority must seek when carrying out an EHC Needs Assessment. The list includes at r.6(1)(d): “psychological advice and information from an educational psychologist”
© Sally Gore, 2025
