Summary: Mrs X complained about the Council’s actions during the Education, Health and Care needs assessment process for her child. We find the Council at fault for delay, poor communication, and failure to secure suitable full-time education. This caused a loss of special educational provision and missed education for her child, and avoidable distress, uncertainty, and time and trouble for Mrs X. The Council has agreed to apologise and make a payment to Mrs X.

The complaint

1. Mrs X complained about the Council’s actions during the Education, Health and Care (EHC) needs assessment process for her child, Y. Specifically, she says the Council:
1. delayed Y’s EHC needs assessment;
2. failed to consult with her, gather the family’s views, or communicate effectively during the process;
3. refused to consider private medical reports she submitted;
4. failed to consult with occupational therapy (OT) and speech and language therapy (SALT) professionals; and
5. did not secure suitable, full-time education for Y.
2. Mrs X says these failings left Y without suitable, full-time education, which harmed Y’s learning, social development and mental health. She said this also caused financial strain when a parent had to stop work and created uncertainty and distress for the whole family.

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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. 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.
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)
6. 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

7. 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)
8. In this case, Mrs X appealed to the Tribunal about Y’s special educational needs, the provision specified, and the placement named in the final EHC Plan issued in January 2025. Therefore, I have not investigated parts (c) and (d) of Mrs X’s complaint or any issues arising from January 2025 onwards.
9. I have investigated the parts of the complaint not connected to the appeal, including delay before the right of appeal arose and the Council’s arrangements for Y’s alternative education during that period.

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How I considered this complaint

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

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What I found

Relevant law and legislation

EHC Plan

12. 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

13. 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.
  (Delete irrelevant bullet points)

Advice and information for EHC needs assessments

14. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

Content of EHC Plan

15. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

Appeal rights

16. 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.

Alternative provision

17. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
18. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
19. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
20. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
21. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
22. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

What happened

23. In December 2023, Mrs X asked the Council to carry out an EHC needs assessment for her child, Y, who was no longer attending school and was receiving six hours of home tuition arranged by the Council and the school.
24. In March 2024, the school told Mrs X the Council had agreed to increase Y’s tuition to ten hours a week.
25. In April, Mrs X asked the Council for an update. She explained she had arranged a private Educational Psychology (EP) assessment, due to be completed in May, and raised concerns that Y remained without full-time education. She also asked when the additional tuition would begin, shared Y’s current tutor didn’t have capacity to increase the support and asked whether other agencies had been approached.
26. Later that month, the Council replied that it would review the EP report once completed before deciding whether to issue an EHC Plan.
27. In the following weeks, the school told the Council it did not believe Y’s needs could be met in a mainstream setting. Mrs X continued to chase updates about the tuition increase.
28. In May the private EP assessment took place, and the report was shared with the Council in June.
29. In July, the Council issued a draft EHC Plan. Mrs X requested a co-production meeting and said the draft contained outdated and inaccurate information. Y’s school also confirmed it could not meet Y’s needs and recommended a specialist setting.
30. The Council began to arrange a co-production meeting, but it was not booked due to technical issues. Mrs X continued to chase for a meeting through July and August, also submitting her comments on the draft Plan and asking about the increased tuition.
31. In September, Mrs X again asked for updates on the amendments, the co-production meeting, and when the final Plan would be issued. The Council sought further information from the EP and began consulting specialist settings at the end of the month.
32. Consultation responses were due in early October, but the Council did not begin chasing replies until early November. Some responses were received later that month.
33. In November, Mrs X continued to request updates.
34. In December, Mrs X complained to the Council about delay, poor communication, failure to hold a co-production meeting, and Y’s continued lack of full-time education. She asked for a review of the case, a single point of contact, and for a co-production meeting to be arranged.
35. In January 2025, Mrs X chased an update. Later that month, the Council issued Y’s final EHC Plan and its stage one complaint response. It said Mrs X could appeal to the Tribunal if she disagreed with the Plan and that her case worker would continue to provide updates.
36. Mrs X escalated her complaint, saying the Plan contained outdated information, communication had been poor, and no co-production meeting had taken place despite repeated requests.
37. In February 2025, Mrs X appealed to the Tribunal about sections B, F and I of Y’s EHC Plan.
38. Later that month, the Council issued its final complaint response. It said it would not review the Plan because Mrs X could appeal, maintained that communication with Mrs X and relevant services had been ongoing, and said co-production meetings were discretionary.
39. In April 2025, Mrs X brought her complaint to the Ombudsman.
40. In response to our enquiries, the Council said delays resulted from difficulties obtaining EP advice, staff changes, and the time needed to incorporate feedback from Mrs X and professionals. It said co-production took place through written correspondence and comments on draft documents but accepted that, in hindsight, a co-production meeting would have been beneficial. The Council also said the delay in increasing Y’s tuition was due to the limited availability of Y’s existing tutor and parental preference.

My findings

Delay in the EHC needs assessment

41. The Council failed to complete Y’s EHC needs assessment and issue a final EHC Plan within the 20-week statutory timescale.
42. Mrs X requested an EHC needs assessment in December 2023, so the final EHC Plan should have been issued by April 2024. However, the Council did not issue the Plan until January 2025, a delay of nine months. This delay is fault. Although part of the delay was due to obtaining EP advice, there were also further avoidable delays in drafting, consulting, and finalising the Plan. The overall process was poorly managed.
43. The delay caused avoidable distress, uncertainty, and frustrated Mrs X’s right of appeal to the Tribunal. I also find, on balance, that the delay meant Y missed out on the special educational provision they would have been entitled to during this period. Where fault results in a loss of special educational provision, we typically recommend a symbolic financial remedy to acknowledge the impact of that loss. Based on the severity of Y’s special educational needs as set out in their EHC Plan, I consider a payment of £900 per term to be appropriate.

Communication and co-production

44. Mrs X repeatedly asked for a co-production meeting and for updates. The Council began to arrange a meeting but failed to complete this, did not always respond promptly, and at times did not reply at all.
45. I acknowledge the Council did consult with Mrs X and sought her views on the draft EHC Plan. However, although co-production meetings are not a statutory requirement, the Council’s communications gave Mrs X a reasonable expectation that such a meeting would take place. Its failure to arrange this meeting, or to respond to her enquiries in a timely and consistent manner, amounts to fault and caused Mrs X avoidable frustration and distress.

Alternative provision

46. Y was receiving six hours of tuition per week when Mrs X requested the EHC assessment. The Council agreed in March 2024 to increase this to ten hours, but this increase was not implemented. This was fault. The Council said the delay in increasing Y’s tuition was due to the limited availability of Y’s existing tutor and parental preference. However, there is no evidence to support this. The records show Mrs X repeatedly asked the Council to secure additional or alternative provision once it became clear the existing tutor could not increase hours. The Council did not identify or offer any alternative tutors or provision. This meant that Y missed out on a significant amount of education over an extended period and added to Mrs X’s distress.
47. Where fault results in a loss of education, we typically recommend a symbolic financial remedy to acknowledge the impact of that loss. Based on Y’s individual needs, the academic year, the education provided, and the impact on their development, I consider a payment of £600 per term to be appropriate.

Complaint handling

48. The Council responded to both stages of Mrs X’s complaint but did not properly consider her concerns about delay, communication or alternative education. It largely repeated its view that Mrs X could appeal to the Tribunal if she disagreed with the EHC Plan.
49. The Council missed an opportunity to identify and address its service failings earlier. This was fault and caused Mrs X additional frustration and time and trouble.

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Action

50. To remedy the injustice caused by the above faults, within four weeks of the date of our final decision, the Council has agreed to: 
• apologise to Mrs X in line with our guidance on Making an effective apology;
• pay Mrs X £400, to recognise the uncertainty and avoidable distress caused by the delay in obtaining EP advice;
• pay Mrs X £1350, to recognise the loss of special educational provision for approximately one and a half terms between July 2024 and January 2025;
• pay Mrs X £400, to recognise the distress, frustration and time and trouble caused by its poor communication and complaint handling, and the failure to arrange a co-production meeting; and
• pay Mrs X £1500, to recognise the loss of education for approximately two and a half terms between March 2024 and January 2025.
51. I have not recommended further action for the Council to take to improve its complaint handling because in early 2025 the Council agreed to remind officers to consider and respond to all points of complaint.
52. I have not recommended further action for the Council to take to address failings in its SEND team. This is because we previously asked the Council to develop an action plan, including guidance for officers to ensure the Council meets its statutory duties when obtaining advice for EHC needs assessments and regarding education of the children who are out of school. The Council was beginning work on this at the start of 2025.
53. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

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Investigator's decision on behalf of the Ombudsman