Summary: We will not investigate Mrs X’s complaint about delays in producing an Education Health and Care Plan. We have upheld the complaint, and the Council has agreed to a proportionate way to resolve the complaint.

The complaint

1. Mrs X says the Council delayed in producing an Education Health and Care Plan (EHC Plan). She says the Council’s used a flawed assessment process and did not consult schools properly. She says it has not implemented the EHC Plan fully.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if
• we are satisfied with the actions a council has taken or proposes to take.
• there is not enough evidence of fault to justify investigating; or
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(7), 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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How I considered this complaint

7. I considered information provided by Mrs X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. In March 2022 Mrs X asked the Council to assess her child, Y, for an EHC Plan. It refused. Mrs X could have appealed this decision to the Tribunal. It is reasonable to expect her to have done so. We will not look at this decision.
10. In September 2023 Y’s school asked the Council to assess Y for an EHC Plan. In November 2023 it agreed to do so. It completed its assessment in July 2024. It said it would not issue an EHC Plan. Mrs X appealed the Council’s decision to the Tribunal. This prevents us from investigating both the decision not to issue an EHC Plan and the assessment process.
11. The Council agreed in January 2025 to issue an EHC Plan and the Tribunal appeal ended. The Council issued the EHC Plan in March 2025. Any delay in doing so is not significant enough to justify an investigation.
12. Mrs X says the Council has not implemented the EHC Plan. The Council’s reply to Mrs X’s complaint sets out the steps it took to implement the provision. Y is attending the named school. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised the provision is not in place at any time. 

13. We are unlikely to find fault in the Council’s provision between March 2025 and Mrs X’s complaint to it. Any issues since then will need to be complained to the Council before we could consider them.
14. If we were to investigate the Council’s delay in its EHC Plan assessment between November 2023 and July 2024 it is likely we would find fault causing the complainant injustice because the EHC Plan has not been produced within the Regulation’s timescale.

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Agreed action

15. The Council has previously set out to us its action plan to deal with the problems it has with appointing educational psychologists and EHC Plan delays.
16. The Council has agreed to a symbolic payment of:
• £300 for the problems (distress, uncertainty and frustration) caused by the delay.
17. This is a suitable remedy for the frustration and uncertainty caused by the delay.

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Final decision

18. We have upheld this complaint because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Mrs X.

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Investigator's decision on behalf of the Ombudsman