Summary: The Council delayed deciding whether to issue Miss X’s child, Y with an Education, Health and Care (EHC) Plan within statutory timescales. This was caused by a 17 week delay in obtaining Educational Psychologist (EP) advice and a further delay of 12 weeks to issue the final Plan with EP advice in hand. The Council was also at fault for failing to decide whether it should put alternative provision in place for Y when it was aware in January 2025 that Y was not in school. The Council has already apologised to Miss X and provided a suitable payment to remedy the injustice caused.

The complaint

1. Miss X complained the Council delayed completing her child, Y’s Education, Health and Care (EHC) needs assessment which caused a delay in issuing the final Plan. She also complained about inadequate alternative provision during the 2024/25 academic year.
2. Miss X said the delays have caused distress and delayed appeal rights and that Y suffered a loss of education.

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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. 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).

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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.

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What I found

Relevant law and guidance

Education, Health and Care 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 Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;

• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• 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.

12. If the Council agrees to carry out the assessment following a mediation meeting then the Council must decide whether to issue the EHC Plan within 10 weeks and finalise the EHC Plan within 14 weeks of the mediation agreement.
13. 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

Alternative provision and the Section 19 duty

14. 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
15. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017

SEND tribunal

16. 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.
17. 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.
18. 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.
19. 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.
20. 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).
21. We cannot trespass in any way on the jurisdiction of the tribunal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207.

What happened

22. Miss X has a child, Y who during 2024 was of primary school age. Y has a diagnosis of Autism and has had ongoing challenges with anxiety and emotional based school avoidance.
23. In June 2024 Miss X asked the Council to carry out an EHC needs assessment for Y which it agreed to do at the end of June. In line with statutory timescales this meant the Council should have decided whether to issue Y with an EHC Plan by the start of September 2024. That being the case the Council should then have issued Y’s final EHC Plan by the start of October 2024.
24. As part of the assessment the Council requested advice from an Educational Psychologist (EP). The EP provided advice early December 2024 which was a delay of 17 weeks. The Council sent its decision to issue Y with an EHC Plan the same month.
25. Records show Y’s attendance at school dropped from November 2024 and they rarely attended between then and the 2025 Spring term.
26. Miss X complained to the Council in early February 2025 about the delays in issuing Y with an EHC Plan. She said Y was now unable to attend school due to ongoing unmet needs.
27. The Council responded to Miss X a couple of weeks later. It acknowledged it had exceeded the statutory timescales for an EHC needs assessment for which it was sorry. It said there were delays receiving Educational Psychology (EP) advice and a high number of requests for assessment was also creating further delays. The Council said Miss X would receive Y’s draft EHC Plan by early March. The Council said it acknowledged Y was struggling to attend school. It said a Council officer had already told Miss X of support she could access such as requesting a meeting and applying for high needs funding.
28. Records show Miss X provided a doctors letter to the Council in early March which referred to Y’s ongoing anxiety.
29. Miss X was unhappy with the response and asked for a stage two complaint in March. She said Y was without a Plan and due to move to secondary school in September. She said no alternative education had been offered despite Y being out of school.
30. The Council issued Y’s draft EHC Plan in March 2025.
31. After speaking with Miss X the Council emailed Miss X in April and apologised again for the delay in completing Y’s EHC needs assessment. It offered Miss X £900 to recognise the impact of those delays and a further £250 to acknowledge the distress caused. Miss X accepted these payments in April.
32. Attendance records show Y began accessing a part time timetable at school from late March onwards. The Council said Miss X and Y both engaged with the part time arrangement and were working with the Council’s attendance team.
33. The Council issued Y’s final EHC Plan on 30 April 2025 naming their current primary school with a transfer to a mainstream secondary school from September 2025.
34. Miss X appealed the final EHC Plan to the SEND tribunal in June 2025. She appealed against Section I and the naming of a mainstream school.
35. Y should have transitioned to secondary school in September 2025 and attendance records show they did not attend. The Council said Y’s absence was authorised with them attending some approved off site activities.
36. In January 2026 the SEND tribunal issued a consent order showing the Council had agreed to amend Y’s EHC Plan to show Y’s placement was now Education Other than at School (EOTAS).
37. Miss X remained unhappy and complained to us.

My findings

EHC needs assessment delays

38. 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.
39. After agreeing to Miss X’s request for an EHC needs assessment the Council should have made the decision whether to issue a Plan by early September 2024 and then subsequently issued the final Plan by the start of October 2024.
40. The EP report should have been available to the Council by early August 2024 in order for it to have met the September deadline. The EP report was not complete until the start of December 2024 which was a delay of 17 weeks and fault. It caused a delay in the Council deciding whether to issue Y with an EHC Plan. This service failure came about due to the Council being unable to recruit enough EPs to meet demand and a backlog of cases.
41. However, the delay in obtaining EP advice was not the only reason for the delay in issuing Y’s final EHC Plan. With EP advice in hand the Council should have issued Y’s final Plan by the start of February 2025. It did not do so until 30 April 2025 which is a further delay of 12 weeks which is fault.
42. In total the Council took 48 weeks to assess Y and issue the final EHC Plan instead of the 20 weeks statutory timescales, due to the delay in obtaining EP advice and because of backlogs and staffing issues in its SEND service.
43. The faults above have caused Miss X distress and uncertainty and delayed her right of appeal to the SEND tribunal which she used in June 2025.

Y’s education

44. Records show Y attended school during the first part of the 2024/25 academic year however this declined from November 2024 onwards. The Council’s complaint response indicates it was aware however from at least January 2025 that Y was not attending. It is at this point that it becomes the Council’s duty to consider whether or not it is appropriate to put alternative provision in place for Y as a child not attending school. There is no evidence the Council had any input or oversight of Y’s circumstances. The lack of action, follow up and oversight with Miss X was fault.
45. Although the evidence shows Y had part time arrangements in place from March 2025 the fault leaves uncertainty around whether support could have been place earlier with prompt intervention from the Council.
46. Y’s EHC Plan was issued in April 2025 naming their current mainstream school which they continued to not attend. The Plan came with a right of appeal to the SEND tribunal which Miss X used. This being the case I cannot consider Y’s education from the point the Plan was issued because of the restrictions set out in paragraphs 18-21.

Injustice

47. The Council has already apologised to Miss X and paid her a total of £1150. This payment is in line with our guidance on remedies and is sufficient to recognise the injustice caused by both the EHC needs assessment delays and for not considering its S19 duty in a timely manner.
48. The Council has an ongoing SEND action plan and is subject to a Department for Education improvement notice. As part of this it is addressing the demands in its SEND service and reducing the backlog in the EHC needs assessment process. This includes ongoing recruitment of EPs and SEN case officers. We have also made other decisions since the scope of this complaint around the Council not considering its S19 duty in a timely manner.
49. Given the above I have not made further service improvement recommendations and we continue to monitor the Council’s compliance and ongoing work to reduce the backlog through our casework.

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Decision

50. I found fault causing injustice. The Council has already provided Miss X with a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman