Summary: We have found the Council at fault for delays during Mrs X’s son’s (Y’s) Education Health and Care needs assessment and Plan process. We have also found fault with the Council for failing to make a Section 19 decision, its poor communication with Mrs X and its delayed complaint response. The fault has caused Y to miss out on provision, caused the whole family avoidable distress and delayed Mrs X’s appeal rights. The Council has agreed to apologise to Mrs X and make a symbolic payment to remedy Y’s missed education and the distress caused.

The complaint

1. Mrs X complains about the delays during her son’s EHC Plan process and subsequent complaints process. She says her son has missed education and the situation has worsened his anxiety.

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The Ombudsman’s role and powers

2. 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)
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. 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)
5. 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.
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 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

8. Y stopped attending school in 2023. Mrs X brought her complaint to us in March 2025. Section 26B applies in this case as events that took place earlier than 12 months before Mrs X brought her complaint to us are considered a late complaint.
9. Mrs X said she couldn’t complain to us until the Council had completed its complaint process and it delayed responding to her stage 2 escalation for 3 months.
10. I have exercised discretion to look back to when the Council made its decision to carry out an EHC needs assessment for Y in February 2024. I have not gone back any further as Mrs X could have complained to us sooner, without the S2 response and we would have chased the Council.

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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

Law and guidance

EHC Plan

13. 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.

Timescales and process for EHC assessment

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. It says the following:
• 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 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).
15. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.

Service failure

16. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

Section 19 duty

17. Section 19 of the Education Act 1996 says that the council must arrange suitable alternative educational provision when it finds that a child is unable to attend school because of a permanent exclusion, an illness, or for any other reason which make the school inaccessible to the child. The alternative educational provision must be suitable to the child’s age, ability and aptitude, and any special educational needs they have.

What happened

Background (pre-February 2024)

18. Mrs X’s son, Y has SEN. The Council refused to carry out an EHC needs assessment for Y in early 2023. Mrs X requested a needs assessment again in October 2023. The Council refused and Mrs X appealed.
19. Y attended a mainstream school until summer June 2023. The school informed the Council that Y had stopped attending in June 2023. From September 2023, the school delivered 2 hours per week of alternative provision.

Section 19 alternative provision

20. Mrs X said she repeatedly told the Council that 2 hours per week was not enough provision but was told that Y was still on roll at school and it was the school’s responsibility.
21. In October 2024, Mrs X wrote a formal letter to the Council requesting Section 19 provision. The lack of alternative provision formed part of Mrs X’s complaint to the Council. The Council said it would consider Mrs X’s request.

EHC needs assessment

22. In February 2024, ahead of the Tribunal hearing, the Council agreed to assess Y. In May 2024, an EP assessed Y.
23. After months of delays and no communication from the Council since February, Mrs X started legal proceedings against the Council. A week later, the Council issued a draft EHC Plan in September 2024.

Complaint

24. Mrs X complained to the Council about the delays during the EHC needs assessment and draft Plan process, poor communication and that Y was missing a suitable education.
25. The Council apologised for the delays and poor communication. It stated the national shortage of EPs as a cause of the delays and recognised that the Council’s records management showed no correspondence with Mrs X between February and September 2024. It agreed to consider Mrs X’s request for alternative education provision under Section 19 and recognised that the 2 hours a week with a mentor was not sufficient.
26. In November, Mrs X escalated her complaint to stage 2.
27. The Council issued Y’s final EHC Plan in December 2024 naming a specialist school. It responded to Mrs X’s stage 2 complaint in March 2025.
28. Mrs X brought her complaint to the Ombudsman in March.

My findings

Delayed EHC Plan process

29. The Council issued Y’s final EHC Plan in December 2024, when it should have issued it in February 2024 (20 weeks from when Mrs X requested the needs assessment). The Council put the delay down to the shortage of educational psychologists (EPs).
30. The Ombudsman is aware there is a national shortage of public and private EPs. While I accept there are justifiable reasons why the EHC Plan needs assessment took longer than it should, the Ombudsman can make findings of fault where there is a failure to provide a service within statutory timescales regardless of the reasons for that service failure.
31. The Council issued Y’s Final EHC Plan in December 2024 an overall delay of approximately 10 months. The delay caused Mrs X frustration and uncertainty about whether Y would have received support sooner. It also meant Mrs X’s appeal rights were delayed.
32. The Council has agreed to pay Mrs X £100 for each month outside the statutory timescales continuing up to when Mrs X had a right of appeal. This equates to £1000 in this case. The £1000 is a symbolic payment to recognise the frustration and uncertainty caused to the family by the delay.

Poor communication

33. The Council acknowledged and apologised for not keeping Mrs X updated on the progress of Y’s EHC needs assessment. There is no record on the Council’s case notes of any contact with Mrs X between February and December 2024. This was fault. It caused Mrs X additional distress.

Section 19 duty

34. Within the period I am investigating, Y only received 2 hours per week of alternative provision from February 2024 to January 2025. The Council was aware of this and acknowledged in its complaint response that it was not enough. The Council did not make a Section 19 decision and did not increase the provision. This was fault. This resulted in Y being without a suitable education for a year.
35. The Council has agreed to apologise and make a symbolic payment £900 per term so £2700 in total, in recognition of the missed provision. This is in line with our guidance on remedies.

Complaint process

36. I have found fault with the Council for delaying its response to Mrs X’s request to escalate her complaint to Stage 2. This caused her frustration and uncertainty. The Council has agreed to make a symbolic payment for the distress caused, and the time and trouble Mrs X experienced while pursuing her complaint.

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Agreed action

37. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for the delayed EHC Plan process, the poor communication and for failing to consider its Section 19 duty.
2. Pay Mrs X £1000 in recognition of the delays during the EHC Needs Assessment and Plan process.
3. Pay Mrs X £2700 in recognition of the missed education provision.
4. Pay Mrs X £500 in recognition of the distress caused by the Council’s poor communication and the time and trouble it has taken her to pursue the complaint.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice. The Council has agreed to take action to remedy injustice.

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Investigator's decision on behalf of the Ombudsman