Summary: Ms X complained the Council twice delayed issuing her child, Y’s, Education, Health and Care (EHC) Plan in line with statutory timescales, failed to provide Y with an education and failed to secure Y’s special educational provision. The Council was at fault for delay in finalising Y’s EHC Plans. The Council will apologise and make a symbolic payment to Ms X for her delayed appeal rights, frustration and uncertainty caused. The Council already has an action plan in place to improve its service. The Council has already apologised for the delay in issuing Y’s EHC Plan after the tribunal order which remedied the injustice caused.

The complaint

1. Ms X complained the Council delayed issuing her child, Y’s, Education, Health and Care (EHC) Plan in line with statutory timescales, failed to provide Y with an education, she said the Council failed to secure Y’s special educational provision from early November 2023 and delayed finalising Y’s EHC Plan following a tribunal order issued in late October 2024. Ms X said as a result Y was not provided education to which they were entitled, missed specialist provision and it caused her distress, avoidable time and trouble and impacted her mental health.

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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. 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.
4. 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)
5. The First-tier Tribunal (Special Educational Needs and Disability) consider appeals against council decisions regarding special educational needs. We refer to it as the SEND tribunal in this decision statement.
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(i), as amended)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

8. The law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended).
9. Ms X initially complained to us in January 2024 about events starting in March 2022. Part of the complaint is late and there are no good reasons to exercise discretion to investigate events going back to March 2022 because Ms X could have complained to us sooner. I will start my investigation in early December 2022 when a EHC needs assessment was requested.
10. Ms X had a right of appeal to the special educational needs and disabilities (SEND) tribunal when Y’s final amended EHC Plan was issued in early November 2023, which she exercised. The appeal related to the provision set out in the Plan and the school placement. The tribunal order was issued in late October 2024. The law says we cannot consider matters that have been considered by a tribunal as set out in paragraph four above. Therefore, I cannot consider a complaint about the provision or the placement during the appeal period between November 2023 and late October 2024.
11. On this basis, I have investigated the period from December 2022 until early November 2023 when Ms X had appeal rights and between late October 2024 when the tribunal issued its order concluding the appeal and mid-January 2025 when the Council issued Y’s final amended EHC Plan.

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How I considered this complaint

12. I considered evidence provided by the Council and Ms X and spoke to her on the telephone. I also considered relevant law, policy and guidance and our guidance on remedies published on our website.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

14. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’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. Section B sets out the child’s special educational needs. Section F sets out the special educational provision needed by the child or young person. Section I is the name and/or type of school/college.

Timescales and process for EHC assessment.

15. 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 a council should decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks of the request for an assessment.
• 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.
16. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
17. The council should consider, with the child’s parent and the parties listed, the range of advice required to enable a full EHC needs assessment to take place. (The Code 9.47).

Appeal rights

18. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
19. The courts have established that if someone has appealed to the SEND 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).
20. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
21. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
22. Section 44(e) of the special educational needs and disabilities (SEND) Regulations 2014 sets out that a council must amend the special educational provision specified in an EHC Plan within five weeks of a tribunal order requiring it to do so.

Section 19

23. The Education Act 1996 (Section 19) provides the basis for statutory guidance. This states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, permanent exclusion, or who are ‘otherwise’ unable to attend school. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
24. A child becomes of compulsory school age after the age of five. This is either on 31 December, 31 March or 31 August in the Reception year. So Reception class children have no right to alternative provision if unable to attend school before 31 December and some have no right at all in the Reception year.

What happened

25. Y has special educational needs including autism and speech and language delays. Y attended a nursery.
26. In early December 2022 Y’s nursery asked the Council to carry out an Education, Health and Care (EHC) needs assessment for Y.
27. In late February 2023 the Council agreed to complete an EHC needs assessment for Y.
28. In April and May 2023 the Council sent letters to professionals asking for an assessment report, including the educational psychology (EP) service. In late April 2023 the EP provided its advice.
29. In early July 2023 the Council sent Ms X an email and agreed to issue Y with an EHC Plan. The Council also sent Ms X Y’s draft EHC Plan and asked her for comments by late July 2023. The Council agreed to consult with a mainstream primary school, School 1 and Ms X’s preferred special school, School 2.
30. Y was given a place at a mainstream primary school, School 1 through the general school admissions round. In mid-July 2023 School 1 said it could not meet Y’s needs.
31. In September 2023 Y did not attend School 1. In October 2023 School 1 said the admission of Y to School 1 was not compatible with the efficient education of its other pupils and would be extremely detrimental to the development, progress and emotional well-being of Y.
32. In early November 2023 the Council issued Y’s first final EHC Plan naming School 1 as the school Y should attend and Ms X’s appeal rights were given. The next day a mediation certificate was issued. In mid-November 2023 Ms X appealed to the special educational needs and disabilities (SEND) tribunal in relation to Sections B, F and I of Y’s final EHC Plan.
33. In mid-January 2024 Ms X complained to the Council. She said the Council had failed to meet its statutory duties under the Children and Families Act 2014, SEND code of practice and associated regulations relating to Y’s EHC needs assessment which had delayed issuing Y’s final EHC Plan. She highlighted the Council’s systemic delays. Ms X also said consultation with her parental school preference was delayed and Y was not receiving their Section F provision and still needed a suitable school placement which was negatively impacting on Y’s education and wellbeing.
34. In late January 2024 the Council sent a final response to Ms X. It said it was aware of the SEND regulation and code of practice timescales and it was not completing assessments within 20 weeks. It said that was because of recruitment and retention issues with EPs, the number of requests had risen sharply and had recently invested funding to expand its teams by 46 full time equivalents but it still had a backlog of EHC need assessments. The Council said special schools were full or over capacity. It had put in place an extensive improvement plan to improve quality of assessments and plans. The Council also said Ms X was not in agreement with School 1 named in Y’s final EHC Plan and she had exercised her right of appeal to the SEND tribunal which would decide Y’s school placement.
35. Ms X remained unhappy and contacted us, at this time Ms X’s appeal to the SEND tribunal was still being considered.
36. In September 2024 Y started at School 2. In late October 2024 the tribunal issued its order and said Y should attend School 2.
37. In mid-December 2024 Ms X contacted the Council and asked it for Y’s final amended EHC Plan following the tribunal order. The Council did not respond. In mid-January 2025 Ms X contacted the Council again for an update on Y’s final amended EHC Plan.
38. In mid-January 2025 Ms X complained to us again and said the Council had delayed issuing Y’s EHC Plan following the tribunal order.
39. In mid-January 2025 the Council responded to Ms X and apologised for the delay in issuing Y’s final EHC Plan. It said it was because it had not received the agreed working document alongside the court order from the tribunal team. Two days later, in mid-January 2025 the Council issued Y’s final amended EHC Plan.

My findings

40. We expect councils to follow statutory timescales set out in law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
41. The Council took approximately 12 weeks to decide it would carry out an EHC needs assessment for Y, which was six weeks over the six week statutory timescale. This was fault and caused Ms X frustration and uncertainty about whether the Council would do the assessment.
42. The Council delayed asking professionals for their assessments. This did not take place until April and May 2023 which caused a further delay. The EP gave its advice by late April 2023 and was not the cause of the delay in issuing Y’s final EHC Plan. In line with statutory timescales the Council should have decided within 16 weeks whether to issue Y with an EHC Plan, by late March 2023. The Council made a decision to issue Y with an EHC Plan in early July 2023 which was a delay of approximately four months.
43. The whole process should take no more than 20 weeks and should have been completed by late April 2023. The Council issued Y’s first final EHC Plan in early November 2023, this was a delay of approximately six months and was fault.
44. The delays impacted Ms X. It caused her frustration and meant her appeal rights were delayed.
45. Y was on roll at School 1 from September 2023. Ms X did not agree that School 1 was suitable and so Y did not attend and School 1 said it could not meet Y’s needs. However, Y was not of compulsory school age between September 2023 and when their final EHC Plan was issued in early November 2023 and so there was no duty on the Council to consider alternative provision for Y. There was no fault in the Council’s actions.
46. Ms X appealed to the SEND tribunal in November 2023 in relation to Section B, F and I of Y’s final EHC Plan. As explained in paragraph four above 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. I therefore could not consider Y’s education provision or their Section F provision between November 2023 and late October 2024 when the tribunal order was issued.
47. In September 2024 Y started to attend School 2 and Ms X said they received a suitable education and their Section F provision from that point.
48. The Council should have issued Y’s final amended EHC Plan within five weeks of the SEND tribunal order and by early December 2024. The Council issued Y’s Plan in mid-January 2025 which was a delay of approximately six weeks. This caused Ms X frustration. It did not cause Y any injustice as they were attending the school named in their Plan and receiving the provision specified already. The Council has already apologised for the delay which remedied the injustice caused to Ms X.
49. The Ombudsman has already made service improvement recommendations to this Council on similar cases. As a result of earlier complaints to us, the Council has agreed to provide us with an action plan to reduce delays in the EHC Plan process and keep parents up to date with delays in completing EHC need assessments . On this basis no further service improvement recommendations were needed.

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Action

50. Within one month of the final decision the Council will apologise and pay Ms X £200 to acknowledge the frustration, uncertainty and delayed appeal rights caused by the Council’s failure to issue Y’s first final EHC Plan in line with the statutory timescales.
51. The Council will provide us with evidence it has complied with the above actions.

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Decision

52. I have completed my investigation finding fault causing personal injustice. The Council has agreed to take action to remedy the injustice caused. The Council has already put in place an action plan to improve its service and already apologised for the delay in issuing Y’s EHC Plan after the tribunal order which remedied that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman