Summary: The Council was at fault for the delay in producing an Education, Health and Care (EHC) Plan for Mrs X’s child, Z. The Council also failed to consider its responsibilities to provide education for Z when it became aware Z was not at school, this is fault. The Council has agreed to apologise and make a payment to recognise the delay and distress, frustration and uncertainty caused.

The complaint

1. Mrs X complained the Council delayed completing her child, Z’s, Education Health and Care (EHC) needs assessment and issuing a final EHC Plan. She also complained the Council did not provide any education for Z during the EHC assessment and it did not make her or Z’s school aware when it awarded interim funding to support Z’s education. She also complained the Council had poor levels of communication with her throughout the process. Mrs X says this meant her child missed out on education provision and they have been caused frustration and uncertainty.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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. 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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)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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How I considered this complaint

6. I have considered:
• information provided by Ms X and discussed the complaint with her.
• information provided by the Council in response to my enquiries.
• the relevant law and guidance and the Ombudsman's Guidance on Remedies.
7. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received before making a final decision.

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What I found

Relevant law and guidance

EHC Plan

8. 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.
9. 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 (SEND Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice; and
• if the council decides to issue an EHC Plan after an assessment 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.

Alternative Provision

10. 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))
11. 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)
12. 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

13. Z has diagnosed Autistic Spectrum Disorder and was on roll at a school but was not attending.
14. The Council received a request to undertake an EHC needs assessment for Z on 8 July 2024. On 8 August 2024 it decided it would complete a needs assessment and sought advice from relevant professionals.
15. In September 2024 Mrs X began paying for one session per week of mentoring for Z.
16. On 22 October 2024 the Council advised Mrs X it would issue an EHC plan for Z, but there would be a delay, as they were waiting for advice from an Educational Psychologist. Mrs X asked the Council if it could support with funding Z’s mentoring session or other online classes. It appears she did not receive any response to this request. She contacted the Council again in December 2024 to ask it to fund three hours tuition a week for Z and for the Council to also fund the mentoring she had already arranged.
17. Available evidence shows there was no contact from the Council to Mrs X between October 2024 and February 2025, despite its awareness that Z was not in school and was waiting for an EHC plan.
18. On 22 January 2025 Mrs X complained to the Council about the delay in the EHC needs assessment and requested interim funding for Z to use for online sessions with a tutor and with a mentor.
19. In its reply on 20 February 2025 the Council upheld her complaint. It explained there was an increased demand for Educational Psychologists leading to the delay in assessment.
20. The Council said the school remained responsible for meeting Z’s special educational needs until it made the decision to issue an EHC plan, the Council then became responsible. It said the Council released funding, known as Waiting Well funding, straight away, to enable the school to make the required provision for Z whilst waiting to complete the assessment.
21. On 24 February 2025 Mrs X made a further complaint to the Council, under stage two of the complaints process. She complained about poor communication from the Council and that neither her nor Zs school had received information about additional funding as discussed in the stage 1 complaint response.
22. On 26 February 2025 the Council emailed Mrs X to advise her about the funding it had made available. It also informed the school by email that it had made the Waiting Well funding available. The Council said the funding was released to enable the school to make the required provision for Z, in line with his parents request for interim provision, with a view to supporting a reintegration plan for him.
23. In March 2025 the school arranged tutoring to support Z.
24. In an email to Mrs X on 7 March 2025 the Council said the Waiting Well funding was backdated to the date the Council should have issued the EHC Plan. It said how funding was administered was for the school to decide.
25. In its stage two complaint response to Mrs X on 15 April 2025 the Council said:
• it was for school to decide how the funding was administered, and it had made the school aware of the tutoring Mrs X had requested.
• it only became aware in March 2025 that the school were not aware of the funding, despite it sharing this information with the school previously.
• it accepted the Council had not contacted Mrs X between late October 2024 and late February 2025 and apologised for this.
• Z was on the school’s roll and the school was aware of the routes to request funding to support provision and the services available to provide support.
• an Educational Psychologist had been allocated and it worked on the basis of advice being available within four weeks.
26. Mrs X remained unhappy and complained to us.
27. The Council received advice from an Educational Psychologist on 28 April 2025 and issued the final EHC plan on 22 July 2025. In this plan the Council named Z’s school in Section I. Mrs X received her appeal rights with this plan.
28. In its response to our enquiries, the Council said it had no record of Mrs X asking it to reimburse her for the mentoring and tutoring support she had paid for.

My findings

29. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. There was a delay of 34 weeks in producing the final EHC Plan for Z. This is fault and caused Mrs X frustration and uncertainty and delayed her right of appeal.
30. EHC needs assessment must include advice from an Educational Psychologist. There was a significant delay in the Council receiving this advice. The Council acknowledged the increased demand for EHC assessments had impacted the Educational Psychology service, leading to the delay, this is service failure.
31. The Council said it made Waiting Well funding available straight away when it decided it would issue an EHC plan. The Council notified Mrs X on 22 October 2024 of its intention to issue a plan for Z. However, it did not advise the school or Mrs X of the funding at that time. It advised Mrs X of the funding in its stage 1 complaint response on 20 February 2025 and advised the school by email on 25 February 2025. This was a delay of four months and is fault.
32. Z may have missed additional support from school during that time. However, the school was aware of the routes to request funding to support Z and could have approached the Council at any time. It is also not possible to say how the school would have utilised the funding if had been aware of it sooner. The Council also backdated the funding to enable the school to arrange support to meet Z’s needs as they were at that time. This did however cause Mrs X and Z uncertainty.
33. The Council was aware Z was not in school from 8 July 2024. I have seen no evidence the Council properly considered its responsibilities under Section 19 to make arrangements for the provision of suitable education. It failed to consider whether to arrange alternative provision and failed to keep this under review. This was fault and caused uncertainty and distress for Z and Mrs X.
34. Although there was fault by the Council, it is not possible to know what the outcome of the Council’s decisions would have been had they considered alternative provision. It is therefore not possible to say, even on balance, that Z would have received alternative provision.
35. There have been other complaints against this Council in June 2025 which recommended service improvements regarding its Section 19 responsibilities. The Council has said that since then it has made service improvements and reviewed its Section 19 policy, including the introduction of strong governance. It says it is confident that should Z’s non-attendance at school have been raised now it would have considered its duties against Section 19. Because of this I do not think that further service improvement recommendations are necessary.
36. The Council said it had no record of Mrs X asking it to pay for Z’s mentor or tutor or requesting that it refund the money she had spent on mentoring. The records show Mrs X requested this in October 2024 and again in December 2024. The Council’s failure to respond to this request is fault. This adds to the uncertainty and frustration over whether the Council would have provided support had it properly considered its duties under section 19.
37. The Council made no contact with Mrs X from October 2024 to February 2025. The Council was aware during this time that Z was not in school. This is below the levels of communication that should be expected by the Council and is fault, which caused significant frustration for Mrs X. Available evidence shows that although there were still issues with communication at times, overall communication did improve. The stage two complaint response states the team would like to apologise which, combined with the improved communication, is sufficient remedy for this matter.

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Action

38. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mrs X for the distress, frustration and uncertainty caused by the delay to Z’s EHC plan and for failing to consider its Section 19 responsibilities. 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 Mrs X £800 for the distress, frustration and uncertainty caused to her by the Council’s eight month delay in the provision of Z’s EHC plan.
3. Pay Mrs X £500 for the distress and uncertainty caused to Z by the Council’s failure to consider its Section 19 responsibilities.
39. Within three months of the final decision, the Council should produce an action plan outlining the steps it is taking to address the delays in the Education, Health and Care Needs assessment process.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I have completed my investigation. There was fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman