Summary: Mrs Y complains about delays in finalising and issuing her child’s Education, Health and Care Plan. She says her child missed important provision and the Council did not arrange any alternative provision during the period of delay. Some parts of the complaint are outside of our jurisdiction because Mrs Y appealed to the Tribunal. There are also matters which are closely connected with the appeal. For the parts of the complaint within our jurisdiction, the Council has agreed to make a symbolic payment of £600 and will share a copy of its service improvement plan.

The complaint

1. Mrs Y complains the Council significantly delayed issuing an Education, Health and Care (EHC) plan for her child, D, who was due to start Year 10 in September 2025. She says the Council failed to comply with the statutory 20-week timescale for issuing a final EHC plan, causing uncertainty and disruption for D.
2. As a result of this delay, Mrs Y says D went without full-time education for a significant period which in turn impacted their wellbeing and health.

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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 a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)

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What I have and have not investigated

6. I have investigated what happened between May 2024, when the Council received a request to complete an EHC needs assessment, and March 2025 when the Council issued a final EHC plan. For the reasons explained in paragraphs 14 to 16 of this statement, it is my view that any complaint about the type of provision made available for D after March 2025 is too closely connected to the matters which Mrs Y appealed.

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How I considered this complaint

7. I considered evidence provided by Mrs Y and the Council as well as relevant law, policy and guidance.
8. Mrs Y and the Council have an opportunity to comment on my draft decision. I will consider any comments before making a final decision.
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 found

EHC plans

10. 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. 
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 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).

Appealing an EHC plan

12. Parts of the EHC plan carry a right of appeal, including the 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.
13. 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)
14. 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.
15. 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.
16. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

What happened

17. Mrs Y has a secondary school aged child, who we will call D. In July 2022 D received a diagnosis of Autism Spectrum Disorder (ASD). At the time, D did not have an EHC plan and was attending a mainstream school.
18. On 21 May 2024 Mrs Y wrote to the Council to request an EHC needs assessment (EHCNA) because she felt that D would benefit from having an EHC plan. D’s school also requested an EHCNA and provided further supporting information. The school noted that D’s attendance was 80%.
19. The Council considered the request on 26 June 2024. It wrote to Mrs Y on 11 July 2024 to relay its decision not to assess D. The Council explained its view that D’s school provides “targeted level support” and that this should continue along with a plan to help increase D’s attendance.
20. Mrs Y submitted an appeal against the Council’s decision not to assess. All parties attended mediation in August 2024. The Council reconsidered the evidence and decided to undertake an assessment. It relayed this decision to Mrs Y on 28 August 2024.
21. As part of the EHCNA process, the Council requested advice from an Educational Psychologist (EP) to help decide whether an EHC plan was necessary. The Council received the advice on 14 November 2024 and on 26 November 2024 wrote to Mrs Y to confirm its decision to issue an EHC plan.
22. The Council issued a draft EHC plan on 29 January 2025.
23. Mrs Y complained to the Council on 20 March 2025. She said the Council had not issued the final EHC plan, even though the statutory 20-week deadline had passed. The Council responded to the complaint, apologised for the delay and said it would issue the plan by 28 March.
24. The Council issued a final EHC plan on 25 March 2025. It named the mainstream school which D was already on roll at. Section F included specialist provision to support D’s placement. Mrs Y submitted an appeal the following day.
25. At the same time, D’s school emailed the Council with a referral for provision under Section 19. The school told the Council that D displayed emotional school based non-attendance (ESBNA) and that D had been on a reduced timetable periodically for over a year. The school said it is led by what D can manage, which was usually one to two hours a day, until recently when D stopped attending completely.
26. Mrs Y made a stage two complaint in April 2025. She expressed her disagreement with the Council’s decision to name the school on D’s plan and said that D cannot attend the school for any more than two hours a day.
27. On 23 April 2025 the Council’s Section 19 panel met to consider the school’s referral. After considering the available evidence, the Council wrote to Mrs Y and D’s school to confirm it had “… rejected the referral and made a recommendation for [the school] to hold an early review of [D’s] EHCP. This will enable [the school] to make arrangements to build a bespoke package around [D] and commission suitable alternative provision which will meet the outcomes of [D’s] plan”.
28. Following this, the school recommended D to attend on a part-time basis to establish a pattern of “blended” working at school and off-site.
29. On 9 June 2025 an NHS assessment of D confirmed further diagnoses of Attention Deficit Hyperactivity Disorder (ADHD) and Tourette Syndrome.
30. The school arranged an interim annual review on 18 June 2025. This noted that D’s attendance for the school year was 42.9%. Mrs Y said D had not accessed any formal education since March when the Council issued D’s EHC plan. Mrs Y also said that D struggles to complete schoolwork at home.
31. Following the new information about D’s diagnoses, as well as further information provided by the school, the Council re-considered its position and decided that D needed specialist provision.
32. Whilst it found a full-time placement for D, the Council contacted Mrs Y in June to arrange interim provision. Mrs Y declined because she said it would be too unsettling for D to access provision for a temporary period whilst waiting for their new school placement. D started attending a specialist school from September 2025.

Was there fault by the Council causing injustice to Mrs Y and D?

EHC plan delays

33. There was significant delay in issuing D’s EHC plan. Mrs Y and the school requested an EHC needs assessment on 21 May 2024, but the Council did not issue the final plan until 25 March 2025. The statutory timescale for completing the process is 20 weeks, but in D’s case the Council took around 44 weeks. D’s EHC plan was 24 weeks late. This is fault.
34. The Council has explained the delay occurred due to high demand and a lack of capacity amongst professionals such as EPs. For delay caused by EP shortages, the LGSCO’s guidance says: “The remedy would generally be £100 for each month outside the statutory timescales which continues up to the point the person affected receives a right of appeal, reference or review - whether this is via a refusal to issue a plan or the issuing of a final plan. The £100 a month is a symbolic payment to recognise the frustration and uncertainty caused to the family by the delay”.
35. For the injustice caused by fault, the Council has agreed to make a payment of £600. This is a symbolic payment for the six months of delay in issuing D’s EHC plan. I have not recommended a service improvement remedy because the Council has confirmed it is already taking action to improve its services and increase capacity in the affected areas. However, we have asked the Council to provide a copy of its SEND improvement plan.

Alternative provision

36. For the reasons already explained, I have not investigated events after the Council issued the final EHC plan on 25 March 2025. Mrs Y had a right of appeal, which she used. D’s absence from school was closely linked to their special educational needs and the ongoing disagreement about the type of provision and school setting D needed. In my view, these issues cannot be separated, so I have not considered the alleged lack of provision between March and September 2025. Instead, I have focused the investigation on the period up to March 2025, when Mrs Y’s appeal rights became active.
37. When the school requested an EHCNA, it reported that D’s attendance was 80%. Based on the records available, there was no request for alternative provision between May 2024 and March 2025, nor any evidence that D had stopped attending school. This only became clear when the school made its referral in March 2025, around the time Mrs Y submitted her SENDIST appeal. For the period that falls within my jurisdiction, I do not find fault by the Council, as there was no indication that D needed alternative provision in addition, or instead of, the arrangements already in place at their school.

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Action

38. Within four weeks of my final decision, the Council has agreed to:
• In addition to the apology already provided, make a symbolic payment of £600. This is in recognition of the distress caused by EP delays and the direct impact on the timeliness of issuing D’s EHC plan.
• Provide a copy of the Council’s existing SEND improvement plan.
39. The Council will provide us with evidence it has complied with the above actions.

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Decision

40. I find fault causing injustice. The Council will implement the actions listed above to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman