Summary: Mrs B complained the Council delayed carrying out an education, health and care (EHC) needs assessment and in issuing an EHC Plan and failed to put in place education for her son. The Council delayed carrying out the assessment and in issuing the final EHC plan. There is no fault in those parts of the complaint the Ombudsman can investigate about education provision. An apology and payment to Mrs B is satisfactory remedy for her delayed appeal right and distress.

The complaint

1. The complainant, Mrs B, complained the Council:
• delayed carrying out an education, health and care needs assessment and in issuing a final education, health and care plan (EHC Plan);
• named an inappropriate school in her son’s EHC Plan when that school cannot meet her son’s needs; and
• failed to put in place education for her son in September 2024 when she made clear he could not attend the allocated school.
2. Mrs B says because of those failures her son has missed out on education and the family have been under immense stress.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)

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What I have and have not investigated

7. I have investigated Mrs B’s concerns about the delay completing the EHC needs assessment and failure to put in place education for her son in September 2024. I have not investigated Mrs B’s concerns about the suitability of the school as Mrs B had, and exercised, her right of appeal about that.

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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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

The statutory guidance

11. A child or young person with special educational needs (SEN) may have an 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 Council can do this.
12. The Special Educational Needs and Disability Code of Practice is statutory guidance (the code of practice). It 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:
• Where a 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 EHC Plan within 16 weeks.
• 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).

What happened

13. Mrs B asked the Council to carry out an EHC needs assessment on 7 November 2023. The Council agreed to do that on 13 December.
14. Following advice from the educational psychologist the Council held a joint outcomes meeting in July 2024. The Council sent Mrs B a draft EHC Plan on 31 July and began consulting schools. By that point the Council had already identified a mainstream school for Mrs B’s son to start in September 2024 under the normal admissions procedure.
15. Mrs B asked the Council to name an independent school in section I of her son’s EHC Plan. The Council issued a final EHC Plan on 2 October naming the mainstream school it had already identified for Mrs B’s son.
16. Mrs B appealed about the school named in section I. The tribunal considered the appeal in March 2025 and directed the Council to name Mrs B’s chosen school in section I. As of the Council’s response to my enquiry it intended to issue an amended final EHC Plan naming the school Mrs B requested.

Analysis

17. Mrs B says the Council delayed carrying out an EHC needs assessment and in issuing an EHC Plan. The Council accepts there have been delays. I set out in paragraph 12 what the code of practice says about the timescales the Council has to comply with when completing an EHC needs assessment and issuing an EHC Plan. Those guidelines are clear the Council must issue a decision about whether it has agreed an EHC needs assessment within six weeks of the request. I am satisfied the Council complied with that timescale in this case. Mrs B requested an EHC needs assessment on 7 November 2023 and the Council wrote to Mrs B to confirm its decision on 13 December 2024.
18. The code of practice is also clear the timescale from requesting an EHC needs assessment to issuing a final EHC Plan should be no more than 20 weeks. That means the Council should have issued a final EHC Plan by 26 March 2024. However, the Council failed to issue a final EHC Plan until 2 October 2024, which is a more than six month delay. That is a considerable delay and is fault. That fault meant Mrs B’s right of appeal was also delayed which has impacted on the length of time it took before tribunal considered her case.
19. I recognise part of the delay was due to the difficulty identifying an educational psychologist to complete the assessment. The Council says this delayed the overall process between February and July 2024. I am satisfied the Council has in place a process to address the shortage of educational psychologists. I welcome that and therefore do not make any procedural recommendations. Nevertheless, delay producing the EHC Plan is fault. That caused Mrs B distress and delayed her right of appeal. The Council has offered a remedy of £800 for the delay and £300 to recognise Mrs B’s avoidable distress. That is in line with what the Ombudsman would normally recommend and I therefore consider that, alongside an apology to Mrs B, satisfactory remedy.
20. Mrs B says the Council’s communications with her have been poor. As the officer dealing with Mrs B has left the Council’s employment I cannot access some of the communications between Mrs B and the Council. I am pleased to note though the Council has now introduced a centralised system which should prevent that issue in future. I consider it likely, on the balance of probability, Mrs B experienced difficulty getting a response to her communications given she refers to this in her emails to the Council. That is fault. I consider the apology the Council has offered, alongside the financial remedy, satisfactory and I therefore make no further recommendation.
21. Mrs B says the Council failed to put in place suitable education for her son when he was due to move to secondary school in September 2024. The evidence I have seen satisfies me the Council provided Mrs B’s son with a secondary school to start in September 2024. I am also satisfied when issuing the final EHC Plan the Council named that school in section I. I recognise Mrs B does not believe the school is suitable for her son and I note the tribunal has now directed the Council to name Mrs B’s chosen school. As I said earlier, the Ombudsman cannot comment on the suitability of a school named in section I of an EHC Plan. From the Council’s point of view though it had made available suitable education for Mrs B’s son. In those circumstances as I cannot comment on the suitability of the school I have no grounds to criticise the Council.

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Action

22. Within one month of my decision the Council should:
• apologise to Mrs B for the distress she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B £1,100.
23. The Council should provide us with evidence it has complied with the above actions.

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Final decision

24. 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