Summary: Mrs X complained about the Council’s delays in completing her daughter’s (Y) Education Health and Care needs assessment and in issuing her final Educational Health and Care Plan. We found fault in the Council’s failure to comply with the statutory timescales. The Council’s fault caused injustice to Y and Mrs X. The Council has agreed to apologise and make a symbolic payment.

The complaint

1. Mrs X complains about the Council’s delay in carrying out an Education, Health and Care (EHC) needs assessment for her daughter Y. This meant, she says, that Y could not start school and Mrs X had significant costs of educating her at home.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. 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. 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)
7. 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.
8. 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)
9. 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 have and have not investigated

10. I have not investigated any issues about the schools consulted and proposed by the Council. The Council has now issued Y’s final EHC Plan and Mrs X can appeal Section I to the SEND Tribunal which is the right way to challenge the Council’s decision about a school placement for Y.

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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 received before making a final decision.

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What I found

Legislative and administrative framework

EHC Plan timescales

13. 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 Special Educational Needs (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.

Appeal rights

14. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• description of a child or young person’s special educational needs (SEN), the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

Elective Home Education

15. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

What happened

16. Y is five. She is autistic.
17. At the beginning of November 2023 Y’s early years setting asked the Council for an EHC needs assessment for Y. In mid-December the Council refused to assess Y’s needs.
18. After discussing Y’s case at mediation and the receipt of some further documents, in the second week of February 2024 the Council agreed to carry out Y’s EHC needs assessment.
19. Y was due to start her local primary school in September 2024. Her parents asked for her start to be deferred until January 2025 as they considered she needed a support package through an EHC Plan.
20. Mrs X complained about the Council’s delays in September 2024. Mrs X said the Council’s continued delays with EHC Plan process would mean Y needed to be home educated from January 2025.
21. In its response the Council recognised it had failed to comply with the timescales for EHC needs assessments. The delays were caused by the difficulties with recruitment and retention of EPs and the increase in the EHC needs assessment requests. The Council alerted Mrs X to the Individual Provision Resourcing for all schools where pupils transition from pre-school to primary, which should enable school to make appropriate provision for Y.
22. At the end of February 2025 the Council allocated an Educational Psychologist to provide statutory advice for Y. The EP prepared her statutory advice for Y in the second week of April.
23. Y did not start attending school in January 2025. When contacted by the Education Welfare team Mrs X stated she was electively home educating her as without an EHC Plan she could not be educated at school.
24. Having no contact from the Council, in May Mrs X asked about the progress with Y’s EHC Plan.
25. At the beginning of June 2025 the Council told Mrs X it would issue an EHC Plan for Y and sent her a draft EHC Plan. It asked for her comments and the parents’ school preference for Y.
26. Throughout June Mrs X exchanged many messages with Y’s case officer about Y’s school placement and expressed her preference for a specialist placement.
27. At the beginning of August 2025 the Council told Mrs X her preferred placement could not meet Y’s needs and the Council considered two mainstream schools. Mrs X did not consider it was a suitable option for Y, but two weeks later Y’s case officer said one of these schools would be named in Y’s EHC Plan.
28. The Council issued Y’s final EHC Plan at the beginning of September 2025.

Analysis

29. We cannot criticise the Council for deciding not to carry out an EHC needs assessment for Y in December 2023 as we do not look at the merits of councils’ decision. Besides this decision could be appealed to the SEND Tribunal.
30. The Council agreed to assess Y’s EHC needs in February 2024. Councils have 14 weeks to issue a final EHC Plan for a child from the date they agree to carry out their EHC needs assessment.
31. The Council should have issued Y’s EHC Plan in mid-May 2024 but did so at the beginning of September 2025. This means a delay of over 15 months.
32. The significant delay in issuing Y’s EHC Plan is fault. Part of the delay was caused by the unavailability of EPs, which is a nation-wide problem. The shortage of EPs is outside the Council’s control and, as explained in paragraph four, we would see this part of the delay as a service failure.
33. Even after receiving EP statutory advice in the second week of April 2025, the Council further delayed finalising Y’s EHC Plan process. The Council issued Y’s draft EHC Plan at the beginning of June 2025, two weeks after Mrs X contacted Y’s case officer. Y’s final EHC Plan was only issued at the beginning of September. The Council’s delay between mid-May and the beginning of September 2025 is maladministration.
34. The Council’s fault caused injustice to Y and Mrs X:
• Y was at the critical stage of her education transferring from an early years educational provider to the key stage one education. It was important that her needs were assessed and the right educational provision put in place before she started her school education.
• Mrs X was increasingly distressed by the Council’s significant delays, which meant she was uncertain of the Council’s position on Y’s school placement. Y’s parents deferred her start of school till January 2025 and in the remaining terms of the school year decided to Electively Home Educate her as they did not think the placement offered by the Council could meet Y’s needs. In August 2025 the Council decided to name a mainstream school for Y. Any earlier decision was likely to be the same. If not for the Council’s continuing delay Mrs X would have, however, had appeal rights earlier and would have been able to challenge the Council’s position sooner. Finding out the Council’s position and resolving dispute about Y’s school placement sooner would have been less disruptive to Y’s education.

Service improvements

35. 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.
36. 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.
37. 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.

Remedies

38. When deciding on a symbolic distress payment for the last three and a half months of the Council’s delay in Y’s EHC Plan process, when the EP statutory advice was available, I have considered:
• length of the delay in Y’s EHC needs assessment before the EP statutory advice was prepared;
• stage of Y’s education;
• Mrs X’s uncertainty about the impact of a further delay on the availability of places in schools consulted for Y.

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Action

39. 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 £1,725 for her distress caused by the Council’s failings. This payment consists of £1,200 for the injustice caused by the first twelve and a half months of the Council’s delays and £525 for the Council’s delays in the last three and a half months.

The Council will provide the evidence that this has happened.

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Decision

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

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Investigator's decision on behalf of the Ombudsman