Summary: Miss X complained the Council took too long to issue her son’s Education, Health and Care Plan, failed to send agreed funding to his school and failed to deliver specialist services in his plan. We found fault because the plan was issued late, agreed funding was not sent when it should have been and not all of his provision was delivered to him. This caused Miss X avoidable distress, frustration and uncertainty. It also meant her son did not receive the services he was due. To remedy this injustice, the Council has agreed to apologise to Miss X and make a payment to her.

The complaint

1. Miss X complains the Council took too long to issue her son’s first Education, Health and Care (EHC) Plan. She says it failed to send appropriate funding to his school after the plan had been issued and that specialist services outlined in his plan were not delivered.
2. Miss X says this has caused her distress and frustration and meant her son (Y) missed out on education he should have received.

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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. 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)
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(1), as amended)
7. 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

8. My investigation begins when Y’s school requested an EHC needs assessment in June 2023.
9. This is more than 12 months before Miss X made her complaint to us. However, I am satisfied it is appropriate to exercise discretion to investigate back to June 2023 due to the circumstances of this complaint.
10. My investigation ends when the Council issued its stage two complaint response in February 2025.

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How I considered this complaint

11. I have considered all the information Miss X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
12. Miss X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Timescales for EHC Plan needs assessment

13. A child with special educational needs (SEN) may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them.
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.
15. 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. 
16. 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).
17. In this case, due to the school summer holidays, the EHC plan should have been issued by 11 December 2024.

EHC Plan

18. The EHC Plan is set out in sections including Section F, which is the special educational provision needed by the child or the young person and Section I, the name and/or type of educational placement.  
19. 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) 
20. The First-tier Tribunal (Special Educational Needs and Disability (SEND)) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
21. There is a right of appeal to the Tribunal about Section F and Section I.
22. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in Section F for every pupil with an EHC Plan.
23. However, we consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement.

What happened

24. I have set out below a summary of the key events. This is not meant to show everything that happened.
25. Y’s school (School A) asked the Council to consider an EHC needs assessment (the assessment) for him on 21 June 2023. The Council later agreed to the assessment. Y has attended School A throughout the time of this investigation.
26. By October 2023, the Council was still waiting for assessment reports on Y from an occupational therapist (OT) and an educational psychologist (EP).
27. The OT report was completed on 27 November and the EP report on 14 December 2023. The Council advised Miss X it would present the information at its SEN panel at the beginning of January 2024.

2024

28. The Council issued a draft EHC Plan in February 2024. After further discussions with Miss X, it issued his first Final EHC Plan on 14 March.
29. The Council advised Miss X of her right to appeal to the Tribunal about sections B, F and I of the plan, if she wished. It said it had named a type of school in the EHC Plan but that it was also still consulting with an education setting. When it knew the outcome of this, it said it would give her a further right of appeal.
30. Section F of the EHC Plan listed a variety of provisions Y was due, all to be delivered in a school setting and mostly by school staff. It included provision such as:
• between 45 minutes and one hour of cognitive behavioural therapy (CBT) per week, delivered by a trained professional;
• twice weekly regulation activities with each session lasting 20 minutes;
• a social skills programme delivered each week in a 20-minute session;
• peer relationship work for at least 15 minutes each week; and
• a daily 5-15 minute session on turn taking through playing games.
31. Section I of the EHC Plan did not name a specific school.
32. On 12 June, the Council agreed to £6000 additional funding (the additional funding) for additional staffing at School A and linked to Y’s EHC Plan.
33. Miss X complained to the Council on 18 October. She was unhappy as she said the Council had not sent correct funding to School A and Y still did not have any support in place after his EHC Plan was finalised in March.
34. On 25 October, and after consultation the Council added a named school to Section I of Y’s plan. It changed this to name his existing mainstream school, School A.
35. The Council sent its complaint response to Miss X on 25 November. It upheld her complaint and said:
• School A had received £6000 funding in March 2024 to cover the year ahead; but
• the additional funding agreed in June 2024 had not yet been sent to School A and would be done so by the end of December.
36. Unhappy with this, Miss X escalated her complaint to stage two of the Council’s process a few days later. She queried the Council’s response time to her complaint and said communication about the funding and EHC Plan had been poor. Miss X was also unhappy that it had taken from March to October 2024 to formally name School A in Section I of Y’s EHC Plan even though this was the school she had said she preferred when the plan was at draft stage.

2025

37. Miss X discussed her complaint escalation with the Council early in January 2025 and was told her response would soon be sent. When she had not heard from it by the end of the month, she chased it for the response.
38. The Council sent her its stage two complaint response on 27 February. It upheld her complaint, apologised for the delay in responding and said:
• the funding in question was in addition to the top up funding allocated for Y through his EHC Plan;
• it had experienced considerable capacity issues within its funding team;
• no instruction had been sent to the funding team for it to process the payment to School A;
• School A would receive the funding and was aware of this;
• Y had not received equipment for his learning because of the funding not being sent; and
• School A had already received the EHC Plan top up funding from the EHC Plan's issue in March 2024 even though it had not been named in Section I until October 2024.
39. The response clarified who Y’s EHC Plan caseworker was and said she had been asked to email Miss X to introduce herself.
40. Miss X then brought her complaint to us.

Analysis

EHC Plan timescales

41. When Y’s school submitted the needs assessment request in mid-June 2023, the Council agreed to assess Y on 21 August 2023. Taking into account the school summer holidays, the Council should have issued his EHC Plan 14 weeks later by 11 December 2023. Instead, Y’s first final EHC Plan was issued in mid-March 2024, 13 weeks after the deadline had passed.
42. In response to my enquiries, the Council confirmed the delay in issuing Y’s EHC Plan was due to a shortage of EPs available to complete assessment reports.
43. Not issuing Y’s EHC Plan within the statutory timescale was fault. It caused Miss X avoidable distress, frustration and uncertainty. It also delayed her appeal rights to the Tribunal. We recommend £100 per month for delayed completion of an EHC needs assessment leading to a delayed plan when the delay was caused by EP shortages. I have made a recommendation below to remedy this injustice and in line with this tariff.
44. The Council has recently agreed to a service improvement recommendation in a similar but unrelated complaint. I will therefore make no recommendations related to the delays outlined above.

Section F provision

45. The Council had a non-delegable duty to deliver provision set out in Section F of Y’s EHC Plan regardless of whether it had named a specific school in Section I.
46. In response to my enquiries, the Council confirmed that Y had not consistently received the parts of his Section F provision set out in paragraph 30. The Council has provided no specific evidence of what was delivered to Y and when.
47. Emails between the Council and School A in September 2024 show the Council advising the school that it would need to confirm it could meet Y’s needs and then it would be named and would receive the allocated EHC Plan funding.
48. Evidence of an email sent by Miss X to the Council shows that most of the support for Y was in place at School A by December 2024.
49. On the balance of probabilities, I am satisfied it is more likely than not that Y did not receive the support set out in his EHC Plan until December 2024 and after School A had been named in October 2024.
50. Evidence from after the period of my investigation shows that CBT had never been organised for Y. I am satisfied on the balance of probabilities it is more likely than not this was the remaining provision Y missed out from January to the end of February 2025, until the end of my investigation.
51. Not fully delivering Section F provision was fault on the Council’s part. It caused Miss X avoidable distress, frustration and uncertainty. It also meant Y missed out on the specialist provision he was due. I have made a recommendation below to remedy this injustice.

Checking Section F delivery of a new plan

52. We expect the Council has systems in place to check the provision in a new EHC Plan is being delivered.
53. In response to my enquiries, the Council said schools are aware of who their EHC caseworkers are and are encouraged to contact the Council with any queries regarding children and EHC Plans.
54. The Council sent me evidence of communication between it and School A. This, however, was dated September 2024 onwards and did not show any evidence of the Council checking Y’s provision was being delivered when the plan was first issued. The Council is taking a reactive rather than proactive stance here. Not having systems in place to check plan delivery is fault. It caused Miss X distress, frustration and uncertainty. It meant Y did not receive the services he was due. I have made a recommendation below to remedy this injustice.
55. The Council has recently agreed to a service improvement recommendation in a similar but unrelated complaint. I will therefore make no recommendations related to checks on EHC provision being delivered.

Funding

56. In its stage one complaint response, the Council assured Miss X the additional funding agreed in June 2024 would be sent to School A by the end of December 2024. This did not happen.
57. In its stage two response, the Council explained the continued delay in sending the funding. It said Y’s learning had been affected because of the delay in it being sent.
58. In response to my enquiries, the Council said the additional funding had been paid to School A in March 2025.
59. Not sending the additional funding as agreed was fault. It caused Miss X distress, frustration and uncertainty. It also meant Y did not receive what he should have done for his education. I have made a recommendation below to remedy this injustice.
60. The Council has confirmed the funding and EHC teams are functioning as expected and backlogs are being addressed. I will therefore make no further recommendation linked to this.

Complaint handling

61. In response to my enquiries, the Council said the stage one response was delayed due to capacity issues in the service.
62. The Council’s complaints policy states it will respond to a stage one complaint within 15 working days and will advise if an extension is needed beyond this.
63. It took 26 working days to send its stage one response. It has provided no evidence of advising Miss X it needed more time to respond.
64. The Council’s policy says a stage two response will be issued within 20 working days.
65. At the end of December 2024, the Council said the response would be sent late, but by mid-January 2025. It sent the response on 21 February 2025, giving a response time of 59 working days.
66. I have seen no evidence of any further communication to Miss X explaining the response would be delayed after the mid-January deadline had passed.
67. Not working within the terms of its own complaint policy was fault. It caused Miss X avoidable distress, frustration and uncertainty. I have made a recommendation below to remedy this injustice.

Communication

68. In response to my enquiries, the Council said the case officer who was to contact Miss X after the stage two response was not made aware she was supposed to be doing so. Instead, she first contacted Miss X in March 2025 to discuss Y’s annual review. Not making contact was fault. It caused Miss X further and avoidable distress, frustration and uncertainty. I have made a recommendation below to remedy this injustice.

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Agreed action

69. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Miss X for the identified injustice;
• make a symbolic payment to Miss X of £300 to recognise the delay in the EHC assessment process;
• make a symbolic payment to Miss X of £1650 for the lack of Y’s Section F provision from March 2024 to December 2024; and
• make a symbolic payment to Miss X of £200 for Y’s lack of CBT provision in January and February 2025.
70. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
71. Payments made are in line with the Ombudsman’s guidance on remedies.
72. The Council should provide us with evidence it has complied with the above actions.

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Final decision

73. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman