Summary: The Council was at fault for significant delay in assessing Miss X’s child’s Education, Health and Care Plan. The delay caused Miss X frustration and uncertainty and meant her child missed out on the special education provision. The Council also failed to properly consider if Miss X’s child needed free school transport. To remedy their injustice, the Council will apologise to Miss X, make symbolic payments and reimburse her fuel costs. It will also issue a staff reminder on free school transport.

The complaint

1. Miss X complained the Council took too long to assess her child, W, for an Education, Health and Care (EHC) Plan.
2. Miss X said this meant W’s mental health and wellbeing were impacted, which affected the wider family and ultimately, meant she had to take leave from work. W was excluded from school due to their behaviour, related to their special educational needs. Miss X feels this may not have happened if the Council had issued W’s EHC Plan when it should have. Miss X also said the delay meant she was unable to apply for school transport to get W to the education setting they attended after their exclusion.

Back to top

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. 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).

Back to top

How I considered this complaint

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

Back to top

What I found

Relevant law and guidance

Education, Health and Care Plans

10. Children with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
11. 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 assessment it must decide whether to agree to the assessment within six weeks;
• If the council decides to carry out an assessment, it should do so “in a timely manner”;
• As part of the EHC assessment councils must gather advice from relevant professionals. This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice;
• If the council decides to issue an EHC plan after an assessment, it should prepare a draft EHC plan and send it to schools that may be able to accept the child or young person and meet their needs. Schools should respond to the consultations within fifteen calendar days; and
• The whole process should take no more than 20 weeks from the point the council received the assessment request to the date it issues the final EHC plan.
12. There is a right of appeal to the SEND Tribunal about the educational provision and placement named in a child’s EHC plan. This appeal right is only engaged once the final EHC plan has been issued.

Free school transport

13. 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. (Education Act 1996, section 19). We refer to this as alternative provision.
14. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’. The arrangements must be made and provided free of charge. An eligible child includes one of compulsory school age who is receiving alternative provision and who, taking into account the nature of the route to that provision, cannot reasonably be expected to walk to it.
15. The Council’s school transport policy says one way it provides free school transport is to pay a child’s parent £0.40 per mile they drive to take their child to and from school twice a day.

What happened

16. W is a young person with additional needs. In mid-July 2024, Miss X asked the Council to assess W for an EHC Plan. The Council agreed to assess W in late August 2024.
17. In spring 2025, W was excluded from their school. The Council arranged for W to receive alternative provision. The provision was a three hour walk in each direction. Miss X drove W.
18. An EP assessed W and issued their advice to the Council in mid-May 2025. The Council issued two draft EHC Plans in mid-July. The special educational provision in the Plans included:
• Use of strategies to help W rest and calm down;
• Support for transitions into school from home;
• Support to help W understand their social and emotional state;
• Adjustments to help W remain attentive in class and engage with activities;
• Adjustments to school rules to make attending school more manageable; and
• Some support in breaktimes to have positive interactions with their classmates.
19. Miss X was unhappy with the Council’s delay assessing W for an EHC Plan so she complained to it. Her complaint included that, had the Council not delayed, W might have had their EHC Plan in place early enough to prevent them from being excluded.
20. In response, the Council said:
• The delay assessing W was due to a shortage of EPs and a large increase in the number of EHC assessment requests it received;
• It was working to increase the capacity of EPs to carry out assessments and was prioritising cases based on how urgent they were and the child’s needs;
• Where possible, it was using existing specialist reports on a child’s needs, so they did not have to wait for a new assessment; and
• It was sorry for the delay in carrying out W’s EHC assessment. It offered Miss X £500 to recognise the impact of that delay.
21. W moved to a different alternative provision in September 2025. Miss X told us she had been unable to get free school transport to take W to their new setting because the Council said they needed an EHC Plan first. Miss X continued to drive W.
22. In late November, the Council decided to name Miss X’s preferred school in W’s EHC Plan. It told the Ombudsman it would issue the final Plan when it had an agreed start date with the school. The final Plan will contain minor changes to the special educational provision as a result of comments from the school. Miss X is aware of those changes and agrees with them.
23. In October 2025, the Council agreed to provide free school transport for W.
24. The Council has a detailed plan in place to improve its services to children with special educational needs, which it has shared with the Ombudsman. The plan includes actions it will take to reduce the number of children who wait more than 20 weeks for their first EHC Plan.

Findings

EHC assessment

25. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Following Miss X’s request for an EHC assessment, the Council should have made its decision on whether to assess within six weeks. It did this, at which point, W joined the waiting list for an EP assessment.
26. The Council then had to progress the assessment ‘in a timely manner’ so it could issue P’s final EHC plan within 20 weeks of the assessment request, so by late November 2024. However, EHC plan assessments must include advice from an EP, which should be received within six weeks of the council requesting it. This would have been around early October 2024. The EP did not provide their advice until mid-May 2025.
27. The delay was primarily due to the nationwide shortage of EPs. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. While I accept there are justifiable reasons why the EP advice took longer than it should have, W’s wait to be seen by an EP meant their EHC assessment has taken 74 weeks so far, instead of the statutory timescale of 20. This is a significant delay of over one year. The Council has not yet issued W’s final EHC Plan, but it intends to do so soon. This is positive, but I have nonetheless recommended the Council issue the EHC Plan within two weeks of the date of my final decision, to prevent any further delay.
28. I am pleased to see the Council is making efforts to resolve the issue, as set out in paragraphs 20 and 24. Because the Council has already taken suitable steps to decrease the time it takes to issue a child’s first EHC Plan, I have not made a further recommendation.
29. Educational psychologist advice is the key source of professional information for a child’s EHC Plan. The advice is based on the child’s presentation on the day of the assessment. For that reason, I cannot say, even on balance, that had the Council obtained the advice by early October 2024, it would have resulted in the same provision in W’s draft EHC Plan. The injustice was therefore uncertainty and frustration for Miss X between October 2024 and May 2025.
30. When the Council received the EP advice in May 2025 it had the core information necessary to prepare W’s EHC Plan. There have been no substantive changes to the provision in W’s draft EHC Plan since the EP issued their advice. Therefore, on balance of probabilities, when the Council issues the final EHC Plan, it will likely contain very similar provision to that in W’s draft Plan. The delay finalising W's EHC Plan between May 2025 and December 2025 therefore meant W missed out on special educational provision they should have had. This is around a term and a half’s worth of provision, which was an injustice to them.
31. I cannot say, even on balance, that had the Council issued W’s EHC Plan when it should have done, it would prevented W’s needs escalating to the point they were expelled from school.

School transport

32. The Council was at fault in how it considered if W needed school transport. It must arrange free school transport for children who cannot reasonably walk to their alternative provision, regardless of whether they have an EHC Plan or not. I have seen no evidence the Council considered this for either of the alternative provision settings W attended. Given W’s first alternative provision setting was a three hour walk each way, had the Council not been at fault, it would likely have agreed school transport from the date W began attending that setting.
33. The Council agreed to provide free school transport for W to attend the second alternative provision setting in October. But for any fault, it would likely have agreed to provide transport from September, when W started going there. The fault caused Miss X frustration and meant she incurred costs driving W to and from the provision.

Back to top

Action

34. The Council will issue W’s final EHC Plan within two weeks of the date of my final decision.
35. The Council will also take the following action within one month of the date of my final decision.
1. Apologise to Miss X for the uncertainty and frustration she felt because of the delay assessing W for an EHC Plan between October 2024 and May 2025. 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.
2. Pay Miss X £750 to recognise that injustice. If Miss X has accepted the £500 the Council offered in its complaint response it should pay her a further £250 instead of £750.
3. Pay Miss X £1,500 in recognition of the impact of the lost special educational provision on W.
4. Reimburse Miss X the fuel costs she incurred taking W to and from their alternative provision settings up until the date the Council began providing the transport itself. Where Miss X has receipts for the fuel, she should send copies to the Council. For all other days W attended the alternative provision, the Council will pay her £0.40 per mile for four journeys per day. The Council will use attendance records to confirm which days W attended.
5. Remind relevant officers that children attending alternative provision do not need EHC Plans in order to be eligible for free school transport. The officers should instead consider if, taking into account the nature of the walk, the child could walk to their educational setting.
36. The Council will provide us with evidence it has complied with the above actions.

Back to top

Decision

37. I find fault causing injustice. The Council has agreed actions to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman