Summary: Miss X complained the Council delayed issuing her adult daughter, Miss Y’s Education, Health and Care (EHC) Plan by a year following an order to do so by the SEND tribunal. The Council delayed issuing Miss Y’s EHC Plan by a year which meant she lost the opportunity to receive an education and the specialist provision in the EHC Plan during that period. The Council agreed to apologise and make payments to acknowledge the loss of education and the distress and uncertainty caused.

The complaint

1. Miss X complained the Council delayed issuing her adult daughter, Miss Y’s Education, Health and Care (EHC) Plan by a year following orders from the SEND tribunal in January 2024.
2. Miss X said the significant delays meant Miss Y was without a suitable educational placement or provision which impacted on both her education and social development. This caused both Miss X and Miss Y distress and uncertainty.

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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. 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)
5. 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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How I considered this complaint

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

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What I found

Relevant law and guidance

EHC Plans

8. 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. 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.
9. 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). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135).

SEND Tribunal

10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
11. 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 Code is based on the Children and Families Act 2014 and the SEND Regulations 2014.
12. There is a right of appeal to the Tribunal against a council’s decision not to issue an EHC Plan following an EHC needs assessment.
13. The law says that where the tribunal orders the Council to make and maintain an EHC Plan then the Council should issue a final EHC Plan within 11 weeks of the order being made.

What happened

14. Miss X has a daughter, Miss Y who turned 18 in 2023. Miss Y? has diagnoses of Autistic Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD) and anxiety disorder.
15. In 2022 Miss X asked the Council to carry out an EHC needs assessment for Miss Y. The Council agreed to do so and in December 2022 it issued a decision not to issue Miss Y with an EHC Plan. The Council decided Miss Y’s needs could be met by a mainstream setting. Miss X appealed this decision to the SEND tribunal.
16. In December 2023 the SEND tribunal ordered the Council to issue Miss Y with an EHC Plan. In line with legal timescales the Council should have made and issued Miss Y’s final EHC Plan within 11 weeks, so by 21 March 2024.
17. In October 2024 Miss X complained to the Council because it had still not issued a final EHC Plan for Miss Y. Records show the Council had issued draft versions and sent some placement consultations out, but Miss Y remained without a final Plan or placement to attend.
18. The Council responded to Miss X in December 2024 and apologised for the delays in issuing Miss Y’s Plan blaming the unprecedented demand over the last 18 months. It confirmed it was currently looking at placements for Miss Y.
19. Miss X remained unhappy and complained to us.
20. Since complaining to us the Council issued a final EHC Plan for Miss Y in May 2025. The Plan named a Forest School as Miss Y’s placement with a start date at the end of April 2025.
21. Section F of Miss Y’s EHC Plan outlined the provision she is entitled to which includes
• Adult support in a sensory environment
• Key worker support
• Small group work to develop social interaction
• Life skills programme
• Support to manage her anxiety.

The Council’s response to us

22. The Council told us that it actually issued Miss Y’s final EHC Plan in April 2024, a delay of four months. However, its records show this was issued in error, without anything in section I and there is no evidence of a decision letter being sent to Miss X.
23. The Council confirmed Miss Y started at her placement in April 2025.

My findings

24. The law says that council’s must issue an EHC Plan within 11 weeks of a tribunal order. This means the Council should have issued Miss Y’s final EHC Plan by 21 March 2024. There is no evidence the Council issued a final EHC Plan before May 2025 which is a delay of one academic year. That is significant delay and fault. While the Council said it issued Miss Y’s Plan in April 2024 there is no evidence of a decision letter, its own notes show a plan was issued in error and the Council’s complaint response in December 2024 apologised for the continued delay.
25. The delay issuing the final EHC Plan meant Miss Y missed out on the opportunity to attend an appropriate placement and receive the specialist provision outlined in the EHC Plan by around three terms. But for the delay, it is likely Miss Y would have started receiving provision much earlier.
26. The Council currently has an ongoing SEND improvement action plan which we are overseeing. This includes addressing EHC needs assessment delays and the issuing of EHC Plans following assessment. Therefore, I have not made any further service improvement recommendations. We will continue to monitor compliance through our casework

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Action

27. Within one month of the final decision the Council agreed to:
1. apologise to Miss X and Miss Y for the distress and uncertainty caused by the 13 month delay in issuing Miss Y’s final EHC Plan following a SEND tribunal order to do so in January 2024. 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 I have recommended.
2. Pay Miss Y £3900 to recognise her loss of education and specialist provision between May 2024 and April 2025 caused by the delay in issuing her final EHC Plan.
3. Pay Miss X £200 to recognise the distress and uncertainty caused to her.
28. The Council should provide us with evidence it has complied with the above actions.

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Decision

29. I find fault causing injustice. The Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman