Summary: The Council was not at fault. It did not delay issuing her child, Y’s Education, Health and Care (EHC) Plan. It issued the Plan in line with statutory timescales that applied from the moment it conceded Mrs X’s appeal to the Tribunal. The Council was at fault for taking four months to respond to Mrs X’s complaint at stage one causing Mrs X and Y uncertainty and avoidable distress. The Council has already apologised for the delay which is a suitable remedy. The Council was also at fault for a two-week delay in deciding whether it would assess Y but we find a two-week delay did not cause Mrs X a significant enough injustice.

The complaint

1. Mrs X complained the Council delayed issuing her child, Y’s Education, Health and Care (EHC) Plan, and is unhappy with the school the Council named in Section I of the plan. She said the Council failed to consult schools, and did not communicate effectively.
2. She said these failings caused Y and the wider family avoidable distress and meant Y’s education did not meet their needs.
3. She wants the Council to improve its service, provide Y with a suitable education, and improve its communication with parents.

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The Ombudsman’s role and powers

4. 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)
5. 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)
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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What I have and have not investigated

8. I have investigated Mrs X’s complaint about the delays in completing Y’s EHC needs assessment between May 2024 and July 2024 and from January 2025 until March 2025 when it issued Y’s final EHC Plan.
9. I have not investigated events between July 2024, when Mrs X exercised her right of appeal to the SEND Tribunal against the Council’s decision not to assess Y, and the end of January 2025, when the Tribunal appeal period ended after the Council conceded the appeal. In line with paragraphs 16 to 18 below this puts the period May 2024 onwards outside of our jurisdiction.
10. I have also not investigated events from March 2025 onwards because Mrs X used her right of appeal to the SEND tribunal against the content and the school named in Y’s EHC Plan. This includes Mrs X’s complaint about the Council’s failure to consult with her choice of school. In line with paragraphs 14 to 17 below this puts the period from March 2025 onwards outside of our jurisdiction.

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How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. 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 guidance

EHC Plan 

13. 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 and process for EHC assessment 

14. 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.

Content of an EHC Plan.

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

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

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;
• amendment to these elements of an EHC Plan;

How 26(6)(a) applies when appeal rights have been engaged and relevant caselaw

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. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Regulation 45 of SEND Regulation 2014

20. If the council decides to concede or not oppose an appeal against its refusal to carry out an EHC needs assessment, the appeal is treated as if it was determined in favour of the parent or young person. The Council must, within 2 weeks of notifying the Tribunal that it will not oppose the appeal, confirm that it will carry out the EHC needs assessment. If the Council decides that an EHC plan is necessary, it must issue the final EHC Plan within 14 weeks of the date it notified the Tribunal that it would not oppose the appeal.

What happened

21. Mrs X has a child, Y who has special educational needs and an EHC Plan. From September 2023 Y struggled attending school regularly after they transferred to a mainstream secondary school, school 1 which Mrs X said could not meet Y’s needs.
22. In May 2024, Mrs X asked the Council to complete an EHC needs assessment for Y.
23. In July the Council decided not to assess Y and informed Mrs X about her right to appeal to the Tribunal if she disagreed with its decision.
24. In September 2024 Mrs X appealed the Council’s decision not to assess Y to the Tribunal.
25. In November 2024 Mrs X complained to the Council. She said the Council failed to complete Y’s EHC needs assessment within statutory timeframes.
26. In early January 2025 the Council informed the Tribunal it had overturned its decision and decided to assess Y. It told the Tribunal it already made that decision in September 2024, it failed to notify the Tribunal at the time.
27. At the end of January 2025 the Tribunal issued an order confirming the end of Mrs X’s appeal as the Council conceded. The Tribunal highlighted that regulation 45 applied in line with paragraph 19.
28. In March 2025 the Council issued Y’s final EHC Plan, naming school 1 in Section I.
29. In March 2025, the Council responded to Mrs X’s November 2024 complaint and apologised for the delay in doing so. It said it took positive action from Mrs X’s experience and worked hard to restructure its processes to avoid similar lengthy response times in future.
30. In March 2025 Mrs X appealed to the Tribunal about the decision to name school 1 in Section I of Y’s EHC Plan.

My findings

EHC Needs assessment

31. Mrs X asked the Council to carry out an EHC needs assessment in May 2024. The Council should have decided whether to assess Y within six weeks - by early July 2024. Instead, it made its decision not to assess Y in mid July 2024 - around two weeks late. This was fault, but a two-week delay is not significant enough to have caused Mrs X an injustice.
32. Following Mrs X’s appeal to the Tribunal, the Council decided to concede the appeal. However, it did not notify the Tribunal of this decision until early January 2025. From the point of notifying the Tribunal, the statutory timescales set out in paragraph 18 applied. The Council issued the final EHC Plan in early March 2025 which was within the 14 week timescale set out in regulation 45 and therefore there was no fault.

Complaint handling

33. Mrs X complained to the Council in November 2024 and it responded to her complaint in early March 2025. The Council took four months to respond to Mrs X’s complaint at stage one – that was fault and caused Mrs X avoidable distress and uncertainty. The Council has apologised for its delayed response to Mrs X’s complaint which is a suitable remedy for the uncertainty caused.

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Decision

34. I have found fault causing Mrs X an injustice which the Council already remedied as well as fault which did not cause Mrs X or Y an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman