Summary: Mrs X complained about the delay in her son’s (Y) Education Health and Care needs assessment and the Council’s unsatisfactory communication with her. We found fault in the way the Council carried out the Education Health and Care Plan process for Y and how it communicated with her. The Council’s fault caused injustice to Mrs X. The Council has agreed to apologise and make a payment to recognise Mrs X’s distress.

The complaint

1. Mrs X says the Council failed to:
• comply with the statutory timescales when carrying out her son’s (Y) Education Health and Care (EHC) needs assessment and issuing an EHC Plan for him;
• ensure Educational Psychology (EP) statutory advice was prepared after a face-to-face assessment;
• provide satisfactory communication during an EHC Plan process.
2. Mrs X says the Council’s failings meant Y’s needs were not met at school for many years. In 2024 he could not attend his school full time. This had effect on the whole family as Mrs X had to take time off work to support him.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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)
6. 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)
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. 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)
9. The courts have established that if someone has appealed to the 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)
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 SEND Tribunal in this decision statement.
11. 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.
12. 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)
13. 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

14. I have not investigated the quality of professional advice obtained during Y’s EHC needs assessment and whether special educational provision included in the Plan issued in January 2025 were sufficient to meet his needs. As explained in paragraph eight of this decision we cannot look at anything that was or could have been part of the appeal. Any professional advice prepared during an assessment of Y’s EHC needs, informed the content of his EHC Plan. If Mrs X was not happy with the content of Y’s EHC Plan, she could have challenged it by an appeal to the SEND Tribunal.
15. I have investigated what happened from January 2024. This is because we would normally only investigate what happened within 12 months before the complainant came to us. I did not investigate anything that happened after mid-December 2024 as this is when the Council provided its complaint response. As pointed out in paragraph six of this decision a council should have an opportunity to respond to any issues before we investigate them.

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How I considered this complaint

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

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What I found

Legal and administrative framework

EHC Plan timescales

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:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• 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;
• where councils decide it is not necessary to issue an EHC Plan for a child, they should notify the parents within 16 weeks from the date they received request for an EHC needs assessment;
• 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); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan.

Communication with parents

18. Local authorities should support and encourage the involvement of children, young people and parents or carers by:
• providing them with access to the relevant information in accessible formats;
• giving them time to prepare for discussions and meetings; and
• dedicating time in discussions and meetings to hear their views.

(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24)

19. Councils must have regard to the need to support a child with special educational needs or disabilities and their parent to facilitate the development of the child and to help them achieve the best possible educational and other outcomes. (Children and Families Act 2014 section 19 (d))
20. In our guide updated in January 2025 we clarified that good administrative practice implies being citizen focused. Councils should inform people who use their services what they can expect and what is expected of them. They should deal with people helpfully, promptly and sensitively, taking account of their individual circumstances.

Alternative provision

21. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
22. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

What happened

EHC Plan process

23. After Mrs X had appealed, at the beginning of October 2023 the Council changed its decision and decided to carry out Y’s EHC needs assessment.
24. Mrs X told us the Council had advised her that she would need to wait longer for a face-to-face EP assessment. Mrs X did not consider a remote assessment would be suitable and asked for a face-to-face EP assessment for Y. Mrs X said in the autumn of 2024 the Council put pressure on her to accept a remote EP assessment.
25. From October 2023 Mrs X kept contacting the Council about Y’s EHC needs assessment and his position on the waiting list for EP advice. On many occasions the Council failed to respond.
26. After consulting a charity supporting parents of autistic children Mrs X identified Y had been experiencing an autistic burn-out. In mid-May 2024 she told the school Y could not attend full time. The Council was notified.
27. In mid-June the Council asked for extra information. The Council told us it did not receive any evidence of previous difficulties with Y’s school attendance. Y’s school and Mrs X did not provide any medical evidence.
28. At the end of September 2024 the Council told Mrs X it was starting Y’s EHC needs assessment. It was asking for professional advice which should be available by the beginning of November 2024.
29. In the fourth week of October 2024 an EP carried out Y’s remote assessment. Mrs X was not happy with the EP advice as the EP did not have any face-to-face contact with Y.
30. Mrs X complained about the Council’s delays in the second week of December 2024. She said Y struggled daily and could not manage full school days.
31. The Council responded to Mrs X’s complaint a few days later. It apologised for the delays with Y’s EHC needs assessment which had happened because of the shortage of EPs. It also confirmed Y’s EHC Plan would be issued shortly.
32. In mid-January 2025 the Council issued Y’s final EHC Plan. In Section A of the plan it says: “From May until the end of summer term 2024 […] Y was attending school on a part-time timetable. He could not access the classroom, hall or playground during this period.”
33. Mrs X told the Council she was not happy with the quality of an EP assessment and advice and queried the Council’s decision on funding for Y’s school. Later in the month Mrs X complained to us.
34. Y’s school attendance records show he attended:
• in 2023/2024 nearly 87% of the sessions, with 45 authorised absences;
• in 2024/2025 89% of the sessions, with 39 authorised absences.
35. In response to my enquiries the Council said:
• part of the school’s management of Y’s autistic burnout was authorising his absences. The school did not tell the Council Y was on a part-time timetable.
• the Council holds one waiting list for the children waiting for EP advice. In August 2024 the Council commissioned a contract with an independent EP company to support the backlog of assessments. These assessments are completed virtually. The expected waiting time is the same for the remote and face-to-face EP assessments.

Analysis

EHC Plan process

36. The Council should have issued Y’s final EHC Plan within 14 weeks from its decision to carry out Y’s EHC needs assessment. If the Council had complied with the statutory timescales, Mrs X would have received Y’s final EHC Plan by mid-January 2024. This happened a year later.
37. The delay of 12 months is fault. Most of the delay was caused by the unavailability of an EP to provide statutory advice for Y. Although beyond the Council’s control, as explained in paragraph four we would consider it a service failure. The Council has undertaken appropriate action to reduce the impact of the nation-wide problem on the families waiting for the EHC needs assessments.
38. The Council’s delay caused injustice to Mrs X as she was anxious to ensure proper support for Y at school following professional advice on the extra arrangements he needed. She did not consider it would be helpful to change Y’s primary school but wanted more robust arrangements to increase his school attendance. She kept contacting the Council and was frustrated by its lack of engagement.
39. I do not consider the Council’s fault caused significant injustice to Y. Mrs X told us that after his final EHC Plan was issued his attendance slightly improved, but this was short-term. It seems, therefore, that having an EHC Plan did not have a significant positive impact for Y at the time he was still attending his primary school.
40. During Y’s EHC needs assessment the Council failed in the way it communicated with Mrs X. This was because the Council:
• failed to provide regular updates;
• failed to respond to Mrs X’s correspondence;
• provided confusing information to Mrs X about an EP assessment. Mrs X was convinced the Council had agreed to secure a face-to-face EP assessment for Y, but in September 2024 the Council’s officer implied that was not an option. Although we cannot, even on the balance of probabilities, decide what exactly the Council’s officers told Mrs X, clearly at the beginning of the process the Council raised her expectations.
41. The Council’s failure to provide satisfactory communication to Mrs X is fault. It caused her injustice as she spent much time contacting various members of the Council’s staff and felt frustrated by the unsatisfactory communication. She was disappointed by the change in the Council’s position about the way an EP would assess Y.

Alternative provision

42. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022, updated in August 2023. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education. We expect councils to:
• consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll;
• consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;
• retain oversight and control to ensure your duties are properly fulfilled. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible.
43. We can only hold councils responsible for children’s education and fulfilling their duties listed above if they know about the child’s difficulties with school attendance. When a child does not attend their school or is on a part-time timetable, their school should notify the council. As explained in paragraph seven we cannot investigate the school’s actions.
44. The Council seemed to have limited knowledge about Y’s school absences in summer term 2024. As there were no records of previous difficulties with attendance or medical evidence and there were only a few weeks left of the summer term, the Council seemed satisfied with the school’s support for Y and did not make any extra arrangements for him. We would not criticise this approach.
45. The Council told us it had no knowledge of Y accessing a part-time timetable in the autumn term 2024. I accept this because:
• at this stage I have seen no evidence Y’s school told the Council about his part-time timetable;
• Y’s attendance records showed an acceptable level of attendance;
• information gained during an EHC needs assessment, which got recorded in Y’s EHC Plan, suggests Y was on a part-time timetable only during summer term 2024.
46. As the Council did not know about Y’s difficulties with school attendance in the autumn term 2024 until Mrs X complained in the second week of December, it cannot be held responsible for Y’s education at this time.

Service improvements

47. For some months the Council has been working to improve its EP resources in line with its SEND Strategy Plan. In June 2024 the Council approved “The SEND Additional Assistance Plan”, which aimed to address the growing backlog of EHC needs assessment requests and the unacceptably long timescales for assessments and issue of EHC Plans. The Council has recognised the impact of the extended waiting time on children, young people and their families. The actions agreed in the plan include:
• recruitment of time limited SEND Operations Coordinators;
• recruitment of time limited SEND Operations Partners;
• implementing a “package of support while waiting”;
• increasing the level of support and challenge to schools and other educational settings;
• addressing the parents’ lack of confidence in the system through communications approaches and relationship building;
• increasing business support capacity;
• allocating Customer Service Centre to take incoming SEND phone calls;
• introducing SEND engagement facilitators.
48. The details of the plan show the Council’s determination to improve its SEND services, in particular within EHC needs assessments. The events Mrs X complained about took place before the Council could have fully implemented improvements to its SEND services.
49. In a recent decision we recommended the Council introduce a system of regular updates for parents and young people waiting for EHC needs assessments. We will be monitoring the effectiveness of the Council’s actions to improve its services through our casework.

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Action

50. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X for the injustice caused to her by the faults identified. 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;
• pay Mrs X £1,350 for her distress caused by the Council’s failings. This payment consists of £1,200 for the injustice caused by the Council’s delays and £150 for the Council’s failings with communication.

The Council will provide the evidence that this has happened.

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Decision

51. I find fault causing injustice. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman