Summary: Mrs X complained the Council failed to complete an Education, Health and Care needs assessment for her child within statutory timeframes. We found the Council at fault for delays, causing significant frustration and distress. The Council has agreed to apologise and pay a symbolic payment to recognise the injustice caused. It was also at fault for not making enquiries about her child’s absence at school, but we did not find this caused significant injustice in the limited period we could consider.

The complaint

1. Mrs X complained about delays by the Council in issuing an Education, Health and Care (EHC) Plan and a failure to provide education to her child (J) while they were out of school. Mrs X said this caused significant frustration, distress and uncertainty, also impacting on her child’s mental wellbeing and educational progress.

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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 significant 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. 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)
5. 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

6. 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 LGSCO [2023] EWCA Civ 207)
7. This means that if a child 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.
8. Part of Mrs X’s complaint refers to J not being in education from March 2025. The Council issued a final EHC Plan in June 2025. J’s absence was connected to the College named in the Plan. I therefore cannot investigate beyond this date about any lack of education, as the named placement became appealable.

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How I considered this complaint

9. The complaint has been discussed with Mrs X and her views considered.
10. The Council responded to our enquiries, and I considered its written responses and information it provided, 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 received before making a final decision.

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What I found

Law and administrative background

Education, Health and Care (EHC) Plans

12. A child 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.
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. It says the process “must be carried out in a timely manner”. Steps must be completed as soon as practicable. As part of the assessment, councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice from an Educational Psychologist (EP). Those consulted have six weeks to provide the advice.
14. Parents have a right of appeal to the SEND Tribunal. This is only engaged once a decision not to assess or issue a plan has been made or a final EHC plan has been issued.

What happened – summary of key relevant events

Education, Health and Care (EHC) needs assessment

15. In late June 2024, Mrs X made an EHC needs assessment request for J. At the time, J attended the “College”.
16. In mid-December 2024, the Council received the Educational Psychologist (EP) report for J. The report recommended a Speech and Language Therapy (SALT) assessment. Mrs X said the EP report was inadequate.
17. In late February 2025, the Council issued a draft EHC Plan. The Council later agreed to amend it considering Mrs X’s concerns. The Council apologised for overlooking Mrs X’s privately obtained SALT report and it would now consider it.
18. At the start of April 2025, Mrs X formally complained to the Council about the delays and the draft Plan. She said J was not receiving any formal education.
19. In early May 2025, the Council responded to Mrs X’s complaint. It apologised for the delays. It referred to high demands and the national shortage of EPs. It had significant staff shortages to process the requests. In late May 2025, Mrs X complained to us.
20. In late June 2025, the Council issued a final EHC Plan. This gave Mrs X her appeal rights, which she later used. Since Mrs X’s complaint to us, the Council re-issued a final amended EHC Plan.

J’s attendance at school

21. In mid-March 2025, J stopped attending the College. In early April 2025, Mrs X contacted the Council and mentioned J was not receiving education.
22. In response to a request for information, Mrs X said to me J had several weeks not attending the College. She had been speaking with the College to try and help J back into it. The College later suggested a part time timetable, which Mrs X agreed with in late May 2025, with the aim of returning J back to full time education. This started in June 2025. J attended for a month.
23. In response to our enquiries, the Council said it was not aware of attendance concerns with J.

Analysis

EHC needs assessment delay

24. The Council received the request for the EHC needs assessment in late June 2024. If a council decides to issue an EHC Plan, it should do this within 20 weeks of a request. In this case, the Council should have done this by mid-November 2024. It did not issue a final EHC Plan until late June 2025. This is a significant delay of nearly 8 months.
25. It appears the first three months of delay was down to the Council not receiving advice from an EP until December 2024. We recognise there is a national shortage of EPs affecting many areas. We describe this as fault in the form of service failure (see Paragraph 3). After receiving this, we would expect the Council to follow statutory timescales in the Code to issue a final EHC Plan. This is usually up to eight weeks after the EP report which means it could have issued it by February 2025. The Council then delayed drafting, consulting and issuing a final EHC Plan which took a further nearly five months. This is fault.
26. The faults with delays caused significant frustration and distress for Mrs X and J as they had to wait notably longer than necessary to receive a final EHC Plan, with a lack of consistent communication. This also delayed Mrs X’s right to appeal, which is further injustice.
27. In her complaint to the Council, Mrs X said the Council failed to include recommendations from her SALT report into the draft or final EHC Plan and complained about the quality of the EP report. This is not something we can consider (see Paragraph 6). Once appeal rights are triggered, we cannot look at anything which happened before. This is because it is too closely connected to the EHC Plan (the subject of the appeal) and the Tribunal can also consider issues during the assessment process.

J’s attendance

28. It is not our role to consider the actions of schools or colleges as they are not in our remit to investigate. We investigate the actions of the Council.
29. In response to us, the Council said it was not aware of J’s attendance issues. But in late March and April 2025, in emails to the Council, Mrs X said J was no longer receiving education. I recognise it was not a standalone issue, and she mentioned this amongst her ongoing concerns with the EHC needs assessment process. However, the Council has duties around children who cannot attend school and should have been alert to this. On balance, it was aware by April 2025. I cannot see it acted on Mrs X’s concerns about this at the time or make enquiries about the reasons for non-attendance to consider if it had a duty to provide education. This is fault.
30. But I do not consider this caused significant injustice. On balance, I cannot say if it had not been for the Council’s fault with lack of action at this point, that it likely would have made a difference in the limited period I can consider with this part (see Paragraph 8). This is because Mrs X was in talks with the College during this period of absence, and she mutually agreed a part time timetable to start in June 2025. Even if the Council had made enquiries sooner with the College, it likely may have decided it did not have a role at this point as the College was agreeable to a timebound plan for reintegration.

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Agreed Action

31. To remedy the personal injustice set out above, the Council has agreed to carry out the following actions within one month of the final decision:
• Apologise to Mrs X and J in writing (in line with our guidance on making an effective apology) for the injustice caused by the faults identified and pay a symbolic payment of £700 to recognise the injustice.
32. The Council should provide us with evidence it has complied with the above actions.
33. We have identified similar fault in many previous decisions with the Council. It has been undergoing a significant transformation programme in its SEND service since 2025. Given this, the Council has been subject to ongoing monitoring around progress, and therefore I do not consider it necessary to recommend any further improvements as we are already overseeing this.

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Decision

34. I find fault causing injustice. The Council agreed to my recommendations to remedy the injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman