Summary: The Council was at fault for delay in assessing Mrs X’s child, W, for an Education, Health and Care Plan. This meant W missed out on provision they should have had at a key time in their education. To remedy W’s injustice, the Council will make a symbolic payment to Mrs X. It has already agreed to take suitable action to prevent similar fault in future.

The complaint

1. Mrs X complained the Council took too long to assess her child, W, for an Education, Health and Care (EHC) Plan. Mrs X said this meant W did not have the support they needed in school.
2. After Mrs X complained to the Ombudsman, she added that:
• She was unhappy the Council had used specialist reports she had commissioned during the assessment. Mrs X feels the Council should have obtained its own reports;
• The Council had not arranged alternative education for W when they stopped attending school for a month; and
• The Council had failed to secure the special educational provision in W’s EHC Plan.

The Ombudsman’s role and powers

3. 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)
4. 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.
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

What I have and have not investigated

7. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
8. I will not investigate Mrs X’s complaint about the Council’s decision to rely on her private specialist reports in the EHC assessment. Mrs X is happy with the content of the final Plan so any fault did not cause W a significant personal injustice.
9. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
10. Mrs X has not complained to the Council about her concern that W is not receiving the special educational provision in their EHC Plan. She also has not complained about the education W had while they were out of school for a month. It is reasonable for Mrs X to complain to the Council, so I have not investigated those parts of her complaint to the Ombudsman.

How I considered this complaint

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

What I found

Relevant law and guidance

13. 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. This includes section F, which sets out what special educational provision the child needs.
14. 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: 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal that decision to the SEND Tribunal.
• If the parent appeals and the council concedes the appeal, the council must complete an assessment. If, based on that assessment, the council decides to issue an EHC Plan, it must do so within 14 weeks of the date it conceded the appeal.
15. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).
16. The Council operates a two stage complaints procedure. Its policy says the Council will respond to stage one complaints about children with special educational needs within 20 working days.

What happened

17. In early 2024, Mrs X asked the Council to assess W for an EHC Plan. The Council refused that request and Mrs X appealed to the SEND Tribunal. The Council conceded the appeal in late June.
18. By September 2024, W was at a key point in their school career. In the middle of the month, Mrs X complained to the Council about the delay progressing W’s assessment. When she did not receive a response, she made a further complaint in October 2024.
19. The Council agreed to issue an EHC Plan for W in late November 2024.
20. The Council responded to Mrs X’s stage one complaint in mid-March 2025. It apologised for the delay responding, and for the delay in progressing W’s assessment. The Council said its Special Educational Needs and Disability service was in the middle of introducing an improvement programme to prevent delays like Mrs X had experienced in future.
21. Mrs X remained unhappy and asked for a stage two response to her complaint. However, at that point the Ombudsman decided to accept Mrs X’s complaint early.
22. The Council issued W’s final EHC Plan in early June 2025. The special educational provision in the Plan was based on a wide range of information, which included an educational psychologist report W’s school had commissioned in June 2024. It also included reports Mrs X obtained from medical specialists. Most of them pre-dated October 2024, but one was from April 2025.
23. The Ombudsman upheld a complaint about the Council in September 2024. In response to our investigation, the Council agreed to take the following actions within three months.
• Review its procedures to ensure it completed EHC assessments within the statutory timescales and kept parents updated on the progress of their child’s assessment.
• Develop an action plan based on that review.
• Refer the action plan and Ombudsman’s decision to a Council overview and scrutiny committee for consideration.

Findings

24. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. After the Council conceded Mrs X’s appeal, it was required to issue W’s final EHC Plan by early October 2024. It did not do so until early June 2025, over eight months (around two terms) later. This was fault.
25. The Council relied on a number of specialist reports to decide what special educational provision to include in W’s June 2025 EHC Plan. All but one of those reports was available to the Council in October 2024. Therefore, on balance of probabilities, had the Council issued the Plan in October, it would have contained much of the special educational provision in the June 2025 Plan. The fault meant W missed out on much of the provision listed in the final EHC Plan for two terms. This impacted on their ability to engage with the education on offer at their school. W did not miss out on all the special educational provision in the Plan, however, because some of it was based on the report Mrs X obtained in April 2025, after the deadline for the final EHC Plan.
26. The Council has recently taken action to improve the timeliness of its EHC assessments, which should prevent fault occurring again in future. As a result, I have not recommended further action.
27. The Council significantly delayed responding to Mrs X’s complaints at stage one. It took five months too long, which was fault and caused her avoidable frustration. The Council was not at fault for not issuing a stage two response to Mrs X’s complaint because by that time, the Ombudsman had accepted her complaint.

Action

28. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the frustration she felt due to the Council’s delay in responding to her complaint. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Mrs X £2200 to recognise the impact of the lost provision on W. I recommended this amount in accordance with the Ombudsman’s guidance on remedies and taking into account factors including what provision W missed out on and their school year.
29. The Council will provide us with evidence it has complied with the above actions.

Decision

30. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman