Summary: There was fault by the Council. It took too long to issue the Education Health and Care Plan for Ms X’s son, exceeding the legal time frame by 35 weeks. This caused Ms X distress and uncertainty. The Council has agreed to apologise to Ms X and make a symbolic payment in recognition of the impact of its failings on Ms X.

The complaint

1. Ms X complains that the Council failed to issue an Education Health and Care (EHC) Plan in line with the legal timeframe.
2. Ms X says that as a result of the Council’s failures, her son did not have a school place for September 2025, he did not receive the education he was entitled to and she was caused distress and uncertainty.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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)

Back to top

What I have and have not investigated

5. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
6. 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)
7. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
8. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
9. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
10. This means I cannot investigate whether the Council was wrong to name a mainstream school for the child, nor whether it has made any provision for the child when Ms X refused to take up the place named on the Plan.

Back to top

How I considered this complaint

11. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
13. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

The law and guidance

14. 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. 
15. 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: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• 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 to the Tribunal.
• 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. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• 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);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

What happened

16. On 16 September 2024, Ms X asked the Council to assess her child K for an EHC Plan. The child has special educational needs and was due to start reception year of primary school. The Council agreed to complete the assessment. To meet the legal timeframes, the Council should have completed the assessment and issued a draft EHC Plan by 6 January 2025, and the final Plan by 3 February 2025.
17. On 7 February, Ms X complained that the Council had not completed the assessment and had not issued the draft or final EHC Plan. The Council explained that it had not made progress because it needed an Educational Psychologist’s assessment and there is a nationwide shortage of Educational Psychologists. The Council apologised for this, and also that it had not communicated properly with Ms X during the delay.
18. Ms X asked the Council to consider the complaint at stage two of its process. In May 2025, the Council responded to Ms X’s complaint. The Council acknowledged that it had exceeded the legal timeframes to issue the EHC Plan and that an Educational Psychologist still had not assessed her child. It apologised for the ongoing delay and said it should be able to allocate her case to a psychologist in the next two weeks. The Council offered to pay Ms X £100 for each month it delayed issuing the final Plan. This is in line with the Ombudsman’s guidance on remedies.
19. The Educational Psychologist sent their assessment to the Council on 20 June.
20. The Council sent Ms X a draft EHC Plan on 11 July 2025. Later that month having discussed the draft with Ms X, the Council consulted nine schools on whether they could meet the child’s needs.
21. As there was no EHC Plan naming a school, Ms X’s child did not start school in September 2025 as he should have done.
22. The Council issued the final Plan on 6 October 2025. It named a mainstream school for Ms X’s child, despite these saying they could not meet his needs. The Council said that it was doing this on an interim basis until it could find a specialist school for Ms X’s child. Ms X has appealed to the Tribunal against the school named.
23. As part of our investigation of another separate complaint, the Council produced an action plan and was to undertake a comprehensive review of SEND processes, increasing the number of Educational Psychologists and enhancing the capacity of the SEND team.

Was there fault by the Council causing an injustice to Ms X and her child?

24. The Council took too long to issue the final EHC Plan. It should have done this by 3 February 2025, and instead, the Council did not issue the Plan until 6 October 2025. This was a total delay of 35 weeks.
25. The Council has explained that the initial delay was because there was no Educational Psychologist to assess the child’s needs and make recommendations. The Council has an action plan to increase the number of Educational Psychologists, but the delay affecting Ms X’s child was service failure. This delay caused distress and uncertainty, particularly as the child was due to start primary school in September.
26. The Council received the Educational Psychologist’s assessment and recommendations on 20 June. The Council should have issued the final EHC Plan as soon as possible after this. We would expect the Council to do this within around eight weeks. The Council did not issue the final EHC Plan until 6 October, which was 15 weeks after receiving the Educational Psychologist’s report. This was too long and is fault by the Council.
27. The delay meant that Ms X’s child did not have a school place for primary school. However, had the Council issued the final Plan sooner and named the mainstream school, it is unlikely that Ms X would have taken up that place. This is because Ms X believes the Council should have named a specialist school ( and Ms X says the Council itself and the Educational Psychologist recommended this too but no place was available). This means it is not the delay that caused the child not to be in school, but the fact that the Council named a mainstream school on the final Plan. The Ombudsman cannot change the school named. Ms X has the right to go to the Tribunal to change the school named.
28. However, the further delay after the Educational Psychologist’s assessment caused Ms X further distress and uncertainty.

Back to top

Action

29. I recommended that the Council make two symbolic payments to Ms X. These were:
• A symbolic payment of £600 in recognition of the distress and uncertainty the Council caused when it failed to get an Educational Psychologist’s assessment and issue a final EHC Plan. This period of delay was between 3 February when the final Plan was due, to the 15 August 2025, when it should have issued a Plan following the Educational Psychologist’s report. It is calculated at £100 per month in accordance with the Ombudsman’s guidance.
• A symbolic payment of £200 in recognition of the further distress and uncertainty the Council caused when it failed to issue a final Plan within a reasonable period following receipt of the Educational Psychologist’s report. This period is from mid-August when it should have been able to issue the Plan, to 6 October, when the Council issued the final EHC Plan.
30. The Council has made these payments.
31. The Council will also within one month of the date of this decision:
• Apologise to Ms X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
32. The Council should provide us with evidence it has complied with the above action.

Back to top

Decision

33. I find fault causing injustice. The Council has agreed to take the action set out above.

Back to top

Investigator's decision on behalf of the Ombudsman